LAWS OF BRUNEI
Companies CAP. 39 1
LAWS OF BRUNEI REVISED EDITION 1984
CHAPTER39
COMPANIES
ARRANGEMENT OF SECTIONS
Section
1. Short title
INTERPRETATION
2. Interpretation
3. Application
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PART I
INCORPORATION OF COMPANIES AND MATIERS INCIDENTAL THERETO
MEMORANDUM OF ASSOCIATION
4. Mode of forming incorporated company
5. Requirements with respect to memorandum
6. Stamp and signature of memorandum
7. Restriction on alteration of memorandum
8. Mode in which and extent to which objects of company may be altered
ARTICLES OF ASSOCIATION
9. Articles prescribing regulations for companies
10. Regulations required in case of unlimited company or company limited by guarantee
11. Adoption and application of Table A
12. Printing, stamp, and signature of articles -
FORM OF MEMORANDUM AND ARTICLES
13. Alteration of articles by special resolution
14. Statutory forms of memorandum and articles
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Companies CAP. 39 3
REGISTRATION
15. Registration of memorandum and articles
16. Certificate of incorporation
17. Effect of registration
18. Conclusiveness of certificate of incorporation
19. Registrar may accept statutory declaration as sufficient evidence of compliance with registration requirements
GENERAL PROVISIONS WITH RESPECT TO NAMES OF COMPANIES
20. Restriction on registration of companies by certain names
21. Power to dispense with "Berhad" in name of charitable and other companies
22. Change of name
GENERAL PROVISIONS WITH RESPECT TO MEMORANDUM AND ARTICLES
23. Effect of memorandum and articles
24. Moneys payable to specialty debt
25. Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent
26. Copies of memorandum and articles to be given to members
27. Issued copies of memorandum to embody alterations
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MEMBERSHIP OF COMPANY
28. Definition of member
PRIVATE COMPANIES
29. Meaning of private company
30. Circumstances in which company ceases to be, or to enjoy privileges of, a private company
REDUCTION OF NUMBER OF MEMBERS BELOW LEGAL MINIMUM
31. Prohibition of carrying on business with fewer than seven or, in the case of a private company, two members
CONTRACTS, ETC.
32. Form of contracts
33. Bills of exchange and promissory notes
34. Execution of deeds abroad
35. Power for company to have official seal for use abroad
AUTHENTICATION OF DOCUMENTS
36. Authentication of documents
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Companies CAP. 39 5
PART II
SHARE CAPITAL AND DEBENTURES PROSPECTUS
37. Dating and registration of prospectus
38. Specific requirements as to particulars in prospectus
39. Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus
40. Liability for statement in prospectus
41. Document containing offer of shares or debentures for sale to be deemed prospectus
ALLOTMENT
42. Prohibition of allotment unless minimum subscription received
43. Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar
44. Effect of irregular allotment
45. Return as to allotments
COMMISSIONS AND DISCOUNTS
46. Power to pay certain commissions, and prohibition of payment of all other commissions, discounts, &c.
47. Statement in balance sheet as to commissions and discounts
48. Prohibition of provision of financial assistance by company for purchase of its own shares
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ISSUE OF REDEEMABLE PREFERENCE SHARES AND SHARES AT DISCOUNT
49. Power to issue redeemable preference shares
50. Power to issue shares at a discount
MISCELLANEOUS PROVISIONS AS TO SHARE CAPITAL
51. Power of company to arrange for different amounts being paid on shares
52. Reserve liability of limited company
53. Power of company limited by shares to alter its share capital
54. Notice to Registrar of consolidation of share capital, conversion of shares into stock, &c.
55. Notice of increase of share capital
56. Power of unlimited company to provide for reserve share capital on re-registration
57. Power of company to pay interest out of capital in certain cases
REDUCTION OF SHARE CAPITAL
58. Special resolution for reduction of share capital
59. Application to Court for confirming order, objections by creditors, and settlement of list of objecting creditors
60. Order confirming reduction and powers of Court on making such order
61. Registration of order and minute of reduction
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Companies CAP. 39 7
62. Liability of members in respect of reduced shares
63. Penalty on concealment of name of creditor
VARIATION OF SHAREHOLDERS' RIGHTS
- 64. Rights of holders of special classes of shares
TRANSFER OF SHARES AND DEBENTURES, EVIDENCE OF TITLE
65. Nature of shares
66. Transfer not to be registered except on production of instrument of transfer
67. Transfer by personal representative
68. Registration of transfer at request of transferor
69. Notice of refusal to register transfer
70. Duties of company with respect to issue of certificates
71. Certificate to be evidence of title
72. Evidence of grant of probate
73. Issue and effect of share warrants to bearer
74. Penalty for personation of shareholder
SPECIAL PROVISIONS AS TO DEBENTURES
75. Right of debenture holders and shareholders to inspect register of debenture holders and to have copies of trust deed
76. Perpetual debentures
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77. Power to re-issue redeemed debentures in certain cases
78. Specific performance of contracts to subscribe for debentures
79. Payment of certain debts out of assets subject to floating charge in priority to claims under the charge
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Companies CAP. 39 9
PART III REGISTRATION OF CHARGES
REGISTRATION OF CHARGES WITH REGISTRAR OF COMPANIES
80. Registration of charges created by companies
._.. registered in Brunei
81. Duty of company to register charges created by company
82. Duty of company to register charges existing on property acquired
83. Register of charges to be kept by Registrar
84. Endorsement of certificate of registration on debentures
85. Entry of satisfaction
86. Rectification of register of charges
87. Registration of enforcement of security
PROVISIONS AS TO COMPANY'S REGISTER OF CHARGES AND AS TO COPIES OF INSTRUMENTS CREATING CHARGES
88. Copies of instruments creating charges to be kept by company
89. Company's register of charges
90. Right to inspect copies of instruments creating mortgages and charges and company's register of charges
91. Application of Part III to company incorporated outside Brunei
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PART IV
MANAGEMENT AND ADMINISTRATION REGISTERED OFFICE AND NAME
92. Registered office of company
93. Publication of name by company
RESTRICTIONS ON COMMENCEMENT OF BUSINESS
94. Restrictions on commencement of business
REGISTER OF MEMBERS
95. Register of members
96. Index of members of company
97. Provisions as to entries in register in relation to share warrants
98. Inspection of register of members
99. Power to close register
100. Power of Court to rectify register
101. Trusts not to be entered on register
102. Register to be evidence
LOCAL OR BRANCH REGISTERS
103. Power for company to keep branch register
104. Regulations as to branch register
105. Exemption from certain duties in case of shares registered in local or branch registers
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Companies CAP. 39 11
106. Provisions as to branch registers of companies kept in
Brunei
ANNUAL RETURN
107. Annual return to be made by company having a share capital
108. Annual return to be made by company not having share capital
109. General provisions as to annual returns
110. Certificates to be sent by private company with annual return
MEETINGS AND PROCEEDINGS
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
Annual general meeting
Statutory meeting and statutory report
Convening of extraordinary general meeting on requisition
Provisions as to meetings and votes
Representation of companies at meetings of other companies and of creditors
Provisions as to extraordinary and special resolutions
Registration and copies of certain resolutions and agreements
Resolutions passed at adjourned meetings Minutes of proceedings of meetings and directors Inspection of minute books
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ACCOUNTS AND AUDIT
121. Keeping of books of account
122. Profit and loss account and balance sheet
123. Contents of balance sheet
124. Assets consisting of shares in subsidiary companies to be set out separately in balance sheet
125. Balance sheet to include particulars as to subsidiary companies
126. Meaning of subsidiary company
127. Accounts to contain particulars as to loans to, and remuneration of, directors, &c.
128. Signing of balance sheet
129. Right to receive copies of balance sheets and auditors' report
130. Banking and certain other companies to publish periodical statement
131. Appointment and remuneration of auditors
132. Disqualification for appointment as auditor
133. Auditors' report and auditors' right of access to books and right to attend general meetings
INSPECTION
134. Investigation of affairs of company by inspectors
135. Proceedings on report by inspectors
136. Power of company to appoint inspectors
137. Report of inspectors to be evidence
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Companies CAP. 39 13
- DIRECTORS AND MANAGERS
138. Number of directors
139. Restrictions on appointment or advertisement of director
140. Qualification of director or manager
141. Provisions as to undischarged bankrupts acting as directors
142. Validity of acts of directors
143. Register of directors
144. Limited company may have directors with unlimited liability
145. Special resolution of limited company making liability of directors unlimited
146. Statement as to remuneration of directors to be furnished to shareholders
147. Disclosure by directors of interest in contracts
148. Provisions as to payments received by directors for loss of office or on retirement
149. Provisions as to assignment of office by directors
AVOIDANCE OF PROVISIONS IN ARTICLES OR CONTRACTS RELIEVING OFFICERS FROM
LIABILITY
150. Provisions as to liability of officers and auditors
ARRANGEMENTS AND RECONSTRUCTIONS
151. Power to compromise with creditors and members
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152. Provisions for facilitating reconstruction and amalgamation of companies
153. Power to acquire shares of shareholders dissenting from scheme or contract approved by majority
PARTY WINDING UP
(i) PRELIMINARY MODES OF WINDING UP
154. Modes of winding up
CONTRIBUTORIES
155. Liability as contributories of present and past members
156. Definition of contributory
157. Nature of liability of contributory
158. Contributories in case of death of member
159. Default by personal representatives
160. Contributories in case of bankruptcy of member
(ii) WINDING UP BY THE COURT JURISDICTION
161. Jurisdiction to wind up companies registered in
Brunei
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Companies CAP. 39 15
CASES IN WHICH COMPANY MAY BE WOUND UP
- BYmun
162. Circumstances in which company may be wound up by Court
163. Definition of inability to pay debts
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PETITION FOR WINDING UP AND EFFECTS THEREOF
164. Provisions as to applications for winding up
165. Powers of Court on hearing petition
166. Powers to stay or restrain proceedings against company
167. Avoidance of dispositions of property, etc. after commencement of winding up
168. Avoidance to attachment, etc.
COMMENCEMENT OF WINDING UP
169. Commencement of winding up by the Court
CONSEQUENCES OF WINDING-UP ORDER
170. Copy of order to be forwarded to Registrar
171. Actions stayed on winding-up order
172. Effect of winding-up order
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16 CAP. 39 Companies
OFFICIAL RECEIVER IN WINDING UP
173. Official Receiver in Bankruptcy to be official receiver for winding-up purposes
174. Appointment of Official Receiver by Court in certain case
175. Statement of company's affairs to be submitted to
Official Receiver
176. Report by Official Receiver
LIQUIDATORS
177. Power of Court to appoint liquidators
178. Appointment and powers of liquidator
179. Appointment style etc. of liquidators
180. Provisions where person other than Official Receiver is appointed liquidator
181. General provisions as to liquidators
182. Custody of company's property
183. Vesting of property of company in liquidator
184. Powers of liquidator
185. Exercise and control of liquidator's powers
186. Books to be kept by liquidator .-.
187. Payments of liquidator into bank or Treasury
188. Audit of liquidator's accounts
189. Control of Official Receiver over liquidators
190. Release of liquidators
-
determine whether committee of inspection shall
be appointed
192. Constitution and proceedings of committee of inspection
193. Powers of Court where no committee of inspection
GENERAL POWERS OF COURT IN CASE OF WINDING UP BY COURT
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
205.
Power to stay winding up
Settlement of list of contributories and application of assets
Delivery of property of liquidator
Payment of debts due by contributory to company and extent to which set-off allowed
Power of Court to make calls
Payment into bank of moneys due to company Order on contributory conclusive evidence Appointment of special manager
Power to exclude creditors not proving in time
Adjustment of rights of contributories
Inspection of books by creditors and contributories
Power to order costs of winding up to be paid out of assets
206. Power to summon persons suspected of having property of company
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18 CAP. 39 Companies
207. Power to order public examination of promoters, directors, etc.
208. Power to restrain fraudulent persons from managing companies
209. Power to arrest absconding contributory
210. Powers of Court cumulative
211. Delegation to liquidator of certain powers of Court
212. Dissolution of company
/ (iii) VOLUNTARY WINDING UP RESOLUTIONS FOR, AND COMMENCEMENT OF,
VOLUNTARY WINDING UP
213. Circumstances in which company may be wound up voluntarily
214. Notice of resolution to win9. up voluntarily
215. Commencement of voluntary winding up
CONSEQUENCES OF VOLUNTARY WINDING UP
216. Effect of voluntary winding up on business and status of company
217. Avoidance of transfers, etc., after commencement of voluntary winding up
DECLARATION OF SOLVENCY
218. Statutory declaration of solvency in case of proposal to wind up voluntarily
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Companies CAP. 39 19
PROVISIONS APPLICABLE TO A MEMBERS' VOLUNTARY WINDING UP
219. Provisions applicable to members' winding up
220. Power of company to appoint and fix remuneration of liquidators
221. Power to fill vacancy in office of liquidators
222. Power of liquidator to accept shares, etc. as consideration for sale of property of company
223. Duty of liquidator to call general meeting at end of each year
224. Final meeting and dissolution
PROVISIONS APPLICABLE TO A CREDITORS' VOLUNTARY WINDING UP
225. Provisions applicable to creditors winding up
226. Meeting of creditors
227. Appointment of liquidator
228. Appointment of committee of inspection
229. Fixing of liquidator's remuneration and cesser of director's powers
230. Power to fill vacancy in office of liquidator
231. Application of section 222 to a creditors' voluntary winding up
232. Duty of liquidator to call meeting of company and of creditors at end of each year
233. Final meeting and dissolution
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PROVISIONS APPLICABLE TO EVERY VOLUNTARY WINDING UP
234. Provisions applicable to every voluntary winding up
235. Distribution of property of company
236. Powers and duties of liquidator in voluntary winding up
237. Court may appoint and remove liquidator in voluntary winding up
238. Notice by liquidator of his appointment
239. Arrangement, when binding on creditors
240. Power to apply to Court to have questions determined or powers exercised
241. Costs of voluntary winding up
242. Saving for rights of creditors and contributories
(iv) WINDING UP SUBJECT TO SUPERVISION OF COURT
243. Power to order winding up subject to supervision
244. Effect of petition for winding up subject to supervision
245. Application of sections 166 and 167 to winding up subject to supervision
246. Power of Court to appoint or remove liquidators
247. Effect of supervision order
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Companies CAP. 39 21
(v) PROVISIONS APPLICABLE TO EVERY MODE OF
- WINDINGUP
PROOF AND RANKING OF CLAIMS
248. Debts of all descriptions to be proved
249. Application of bankruptcy rules in winding up of insolvent companies
250. Preferential payments
EFFECT OF WINDING UP ON ANTECEDENT AND OTHER TRANSACTIONS
251. Fraudulent preference
252. Effect of floating charge
253. Disclaimer of onerous property in case of company wound up
254. Restriction of rights of creditor as to execution or attachment in case of company being wound up
255. Duties of bailiff as to goods taken in execution
OFFENCES ANTECEDENT TO OR IN COURSE OF WINDING UP
256. Offences by officers of companies in liquidation
257. Penalty for falsification of books
258. Frauds by officers of companies which have gone into liquidation
259. Liability where proper accounts not kept
260. Responsibility of directors for fraudulent trading
261. Power of Court to assess damages against delinquent directors, etc.
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262. Prosecution of delinquent officers and members of company
SUPPLEMENTARY PROVISIONS AS TO WINDING UP
263. Disqualification for appointment as liquidator
264. Enforcement of duty of liquidator to make returns, etc.
265. Notification that a company is in liquidation
266. Exemption of certain documents from stamp duty on winding up of companies
267. Books of company to be evidence
268. Disposal of books and papers of company
269. Information as to pending liquidations
270. Unclaimed assets to be paid to companies liquidation account
271. Resolutions passed at adjourned meetings of creditors and contributories
SUPPLEMENTARY POWERS OF COURT
272. Meetings to ascertain wishes of creditors or contributories
273. Judicial notice of signature of officers
274. Affidavits, etc. in Brunei and the Commonwealth
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Companies CAP. 39 23
PROVISIONS AS TO DISSOLUTION
275. Powers of Court to declare dissolution of company void
276. Registrar may strike defunct company of register
277. Property of dissolved company to be bona vacantia
CENTRAL ACCOUNTS
278. Companies liquidation account
279. Investment of surplus funds on general account
280. Separate accounts of particular estates
RULES AND FEES
281. General rules and fees
PART VI RECEIVERS AND MANAGERS
282. Disqualification for appointment as receiver
283. Power to appoint Official Receiver as receiver for debenture holders or creditors
284. Notification that receiver or manager appointed
285. Power of Court to fix remuneration on application of liquidator
286. Delivery to Registrar of accounts of receivers and managers
287. Enforcement of duty of receiver to make returns, etc.
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24 CAP. 39 Companies
PART VII
GENERAL PROVISIONS AS TO REGISTRATION
288. Registration offices and appointment of officers for purposes of this Act
289. Fees
290. Inspection, production and evidence of documents kept by Registrar
291. Enforcement of duty of company to make returns to
Registrar
PART VIII
WINDING UP OF UNREGISTERED COMPANIES
292. Meaning of unregistered company
293. Winding up of unregistered companies
294. Contributories in winding up of unregistered company
295. Power of Court to stay or restrain proceeding
296. Action stayed on winding-up order
297. Provisions of Part VIII cumulative
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Companies CAP. 39 25
PART IX
COMPANIES INCORPORATED OUTSIDE BRUNEI CARRYING ON BUSINESS WITHIN BRUNEI
298. Companies to which Part IX applies
299. Documents etc. to be delivered to Registrar by companies carrying on business in Brunei
300. Power companies incorporated outside Brunei to hold immovable property
301. Return to be delivered to Registrar where documents, etc. altered
302. Balance sheet of compc:.ny carrying on business in
Brunei
303. Obligation to state name of company whether limited
304. Service on company to which Part IX applies
305. Office where document to be filed
306. Penalties
307. Interpretation of Part IX
PART X
RESTRICTIONS ON SALE OF SHARES AND OFFERS OFSHARESFORSALE
308. Provisions with respect to prospectuses of foreign companies inviting subscriptions for shares or offering shares for sale
309. Requirements to prospectus
310. Restriction on offering of shares for subscription or sale
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PART XI MISCELLANEOUS
PROHIBITION OF PARTNERSHIPS WITH MORE THAN TWENTY MEMBERS
311. Prohibition of partnerships with more than twenty members
MISCELLANEOUS OFFENCES
312. Penalty for false statement
313. Penalty for improper use of word "Berhad"
GENERAL PROVISIONS AS TO OFFENCES
314. Provision with respect to default fines and meaning of "officer in default"
315. Application of fines
316. Penalty for failure to pay fine
317. Saving as to private prosecutors
318. Saving for privileged communications
319. Service of documents on company
320. Costs in actions by certain limited companies
321. Power of Court to grant relief in certain cases
322. Power to enforce orders
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Companies CAP. 39 27
GENERAL PROVISIONS AS TO ALTERATION OF TABLES, FORMS AND FEES, ETC.
323. Power to alter tables and forms
324. Rules and fees
SCHEDULES
FIRST SCHEDULE
Regulations for Management of a Company Limited by
Shares
SECOND SCHEDULE
Statement in lieu of Prospectus delivered for Registration under section 30
THIRD SCHEDULE Matters required to be stated in Prospectus
FOURTH SCHEDULE
,_ Statement in lieu of Prospectus delivered for Registration under section 43
FIFTH SCHEDULE
Form of Annual Return of a Company having a Share
Capital
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SIXTH SCHEDULE
Form of Statement to be published by Banking and Insurance Companies and Deposit, Provident, or Benefit Societies
SEVENTH SCHEDULE
Provisions which do not apply in the case of a Winding up subject to supervision of the Court
EIGHTH SCHEDULE Table of Fees to be paid to the Registrar
NINTH SCHEDULE Provisions referred to in section 312
TENTH SCHEDULE Scale of Fees
ELEVENTH SCHEDULE Companies (Forms) Rules
TWELFTH SCHEDULE Winding:-up Rules
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Companies CAP. 39 29
COMPANIES ACT
An Act to provide for the incorporation and registration of companies in Brunei, to control and regulate the rela tion between members of a company and the company and between the company and its creditors and the pub lic, to provide for the conditions mder which companies incorporated outside Brunei may carry on business in Brunei and generally to control the functioning within Brunei of companies registered locally or carrying on business within Brunei.
25 of 1956
21 of 1957
s. 89/57
s. 99/59
20of 1983,
Sch.4
Commencement: 1st January 1957 s. 3/57
1. This Act may be cited as the Companies Act.
INTERPRETATION
2. (1) In this Act
"annual return" means the return required to be made, in the case of a company having a share capital, under section 107, and, in the case of a company not having a share capital, under section
108;
"articles" means the articles of association of a company, as originally framed or as altered by spe cial resolution, including, so far as they apply to the company, the regulations contained in Table A in the First Schedule;
"book and paper" and "book or paper" include accounts, deeds, writings, and documents;
Short title
Interpreta
tion
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30 CAP. 39 Companies
"Clerk of Council" means the person appointed to the position of Clerk to the Legislative Council;
"company" means a company formed and reg
istered under this Act;
"Court" used in relation to a company means the
Court having jurisdiction to wind up the company;
"debenture" includes debenture stock, bonds and any other securities of a company whether consti tuting a charge on the assets of the company or not;
"director" includes any person occupying the posi
tion of director by whatever name called;
"document" includes summons, notice, order, and other legal process, and registers;
"general rules" means general rules made under section 281 and includes forms;
"memorandum" means the memorandum of asso ciation of a company, as originally framed or as altered in pursuance of any written law;
"Permanent Secretary" means the Permanent
Secretary, Ministry of Finance;
"prescribed" means as respects the provisions of this Act relating to the winding-up of companies, prescribed by general rules, and as respects the other provisions of this Act, prescribed by His Majesty and Yang Di-Pertuan in Council;
"prospectus" means any prospectus, notice, circu lar, advertisement, or other invitation, offering to the public for subscription or purchase of any shares or debentures of a company;
"Registrar" means the registrar or other officer, appointed by His Majesty by notification in the Gazette to perform the duty of registration of com panies under this Act;
LAWS OF BRUNEI
Companies CAP. 39 31 "share" means share in the share capital of a com
pany, and includes stock except where a distinction
between stock and shares is expressed or implied;
"Table A" means Table A in the First Schedule.
(2) A person shall not be deemed to be within the meaning of any provision in this Act a person in accordance with whose directions or instructions the directors of a com pany are accustomed to act, by reason only that the direc tors of the company act on advice given by him in a profes sional capacity.
Brunei irrespective of the place or places where the business of such company may be carried on.
PART I
INCORPORATION OF COMPANIES AND MATTERS INCIDENTAL THERETO
MEMORANDUM OF ASSOCIATION
Mode of forming in corporated company
(2) Such a company may be either -
(a) a company having the liability of its mem
bers limited by the memorandum of the amount, if
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32 CAP. 39 Companies
any, unpaid on the shares respectively held by them (in this Act termed a company limited by shares);
(b) a company having the liability of its mem bers limited by the memorandum to such amount as the members may respectively thereby under take to contribute to the assets of the company in the event of its being wound up (in this Act termed a company limited by guarantee); or
(c) a company not having any limit on the liabil ity of its members (in this Act termed an unlimited company).
Require ments with respect to memoran dum
5. (1) The memorandum of every company incorpo
rated after the commencement of this Act must state
(a) the name of the company, with "Berhad" or the abbreviation "Bhd" as the last word of the name in the case of a company limited by shares or by guarantee;
(b) in the case of a private limited company, with the word "Sendirian" or the abbreviation "Sdn" as part of its name, inserted immediately before the word "Berhad" or before the abbrevia tion "Bhd" or, in the case of a private unlimited company, at the end of its name;
(c) the objects of the company.
(2) The memorandum of a company limited by shares or by guarantee must also state that the liability of its members is limited.
(3) The memorandum of a company limited by guarantee must also state that each member undertakes to contribute to the assets of the company in the event of its
LAWS OF BRUNEI
Companies CAP. 39 33 being wound up while he is a member, or within one year
after he ceases to be a member, for payment of the debts
and liabilities of the company contracted before he ceases to be a member, and of the costs, charges, and expenses of winding up, and for adjustment of the rights of the contribu tories among themselves, such amount as may be required, not exceeding a specified amount.
(4) In the case of a company having a share capital-
(a) the memorandum must also, unless the com pany is an unlimited company, state the amount of share capital with which the company proposes to
be registered and the division thereof into shares of a fixed amount;
(b) no subscriber of the memorandum may take less than one share;
(c) each subscriber must write opposite to his name the number of shares he takes.
6. The memorandum must bear the same stamp as if it were a deed, and must be signed by each subscriber in the presence of at least one witness who must attest the signa ture.
7. A company may not alter the conditions contained in its memorandum except in the cases, in the mode and to the extent for which express provision is made in this Act.
8. (1) Subject to the provisions of this section, a com pany may, by special resolution, alter the provisions of its memorandum with respect to the objects of the company, so far as may be required to enable it
(a) to carry on its business more economically or more efficiently;
Stamp and signature of memoran dum
Restriction on alteration of memoran dum
Mode in
which and ex
tent to which objects of company may be altered
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34 CAP. 39 Companies
(b) to attain its main purpose by new or im
proved means;
(c) to enlarge or change the local area of its operations;
(d) to carry on some business which under ex isting circumstances may conveniently or advan tageously be combined with the business of the company;
(e) to restrict or abandon any of the objects spe
cified in the memorandum;
(j) to sell or dispose of the whole or any part of the undertaking of the company; or
(g) to amalgamate with any other company or body of persons.
(2) The alteration shall not take effect until, and ex
cept in so far as, it is confirmed on petition by the Court.
(3) Before confirming the alteration the Court must be satisfied
(a) that sufficient notice has been given to every holder of debentures of the company, and to any person or class of persons whose interests will, in the opinion of the Court, be affected by the altera tion; and
(b) that, with respect to every creditor who in the opinion of the Court is entitled to object and who signifies his objection in manner directed by the Court, either his consent to the alteration has been obtained or his debt or claim has been dis charged or has determined, or has been secured to the satisfaction of the Court:
LAWS OF BRUNEI
Companies CAP. 39 35
Provided that the Court may, in the case of any per son or class, for special reasons, dispense with the notice required by this section.
(4) The Court may make an order confirming the alteration either wholly or in part, and on such terms and conditions as it thinks fit.
(5) The Court shaH, in exercising its discretion under this section, have regard to the rights and interests of the members of the company or of any class of them, as we11 as to the rights and interests of the creditors, and may, if it thinks fit, adjourn the proceedings in order that an arrange ment may be made to the satisfaction of the Court for the purchase of the interests of dissentient members, and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement: Provided that no part of the capital of the company shall be expended in any such purchase.
(6) An office copy of the order confirming the altera tion, together with a printed copy of the memorandum as altered, shaH, within 15 days from the date of the order, be delivered by the company to the Registrar and he shall reg ister the copy so delivered and shall certify the registration under his hand, and the certificate shall be conclusive evi dence that aU the requirements of this Act with respect to the alteration and the confirmation thereof have been com plied with, and thenceforth the memorandum as so altered
- shall be the memorandum of the company. The Court may by order at any time extend the time for the delivery of documents to the Registrar under this section for such period as the Court may think proper.
(7) If a company makes default in delivering to the Registrar any document required by this section to be deli vered to him, the company shall be liable to a fine of $50 for every day during which the default continues.
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. LAWS OF BRUNEI
36 CAP. 39 Companies
ARTICLES OF ASSOCIATION
Articles pre scribing reg ulations for companies
Regulations required in case of unli mited com pany or com pany limited by guarantee
Adoption and applica tion of Table A
9. There may in the case of a company limited by shares, and there shall in the case of a company limited by guarantee or unlimited, be registered with the memoran dum, articles of association signed by the subscribers to the memorandum and prescribing regulations for the company.
10. (1) In the case of an unlimited company the articles, if the company has a share capital, must state the amount of share capital with which the company proposes to be reg istered.
(2) In the case of an unlimited company or a com pany limited by guarantee, the articles, if the company has not a share capital, must state the number of members with which the company proposes to be registered.
(3) Where a company not having a share capital has increased the number of its members beyond the registered number, it shall, within 15 days after the increase was re solved on or took place, give to the Registrar notice of the increase, and the Registrar shall record the increase. If de fault is made in complying with this subsection, the com pany and every officer of the company who is in default shall be liable to a default fine.
11. (1) Articles of association may adopt all or any of the regulations contained in Table A.
(2) In the case of a company limited by shares and registered after the commencement of this Act if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall, so far as applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.
LAWS OF BRUNEI
Companies CAP. 39 37
(a) be printed;
(b) be divided into paragraphs numbered con
secutively;
(c) bear the same stamp as if they were con
tained in a deed;
(d) be signed by each subscriber of the memor andum of association in the presence of at least one witness who must attest the signature.
(2) Any alteration or addition so made in the articles shall, subject to the provisions of this Act, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.
FORM OF MEMORANDUM AND ARTICLES
(a) the memorandum of association of a com
pany limited by shares;
(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;
(c) the memorandum and articles of association of a company limited by guarantee and having a share capital;
Printing, stamp. and signature of articles
Alteration of articles by special re solution
Statutory forms of memoran dum and arti cles
B.L.R.O.l/1984
LAWS OF BRUNEI
38
First
Schedule
Registration of memoran dum and articles
Certificate of incorporation
Effect of reg
istration
Conclusive ness of certi tkate of in corporation
(d) the memorandum and articles of association -
of an unlimited company having a share capital;
shall be respectively in accordance with the forms set out in Tables B, C, D and E in the First Schedule, or as near thereto as circumstances admit.
REGISTRATION
17. From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memoran dum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, cap able forthwith of exercising all the functions of an incorpo rated company, and having perpetual succession and a com mon seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.
LAWS OF BRUNEI
Companies CAP. 39 39
19. A statutory declaration by a person entitled to prac tise as an advocate, who is engaged in the formation of the company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be produced to the Registrar, and the Registrar may accept such a declaration as sufficient evidence of compliance.
PROVISIONS WITH RESPECT TO NAMES OF COMPANIES
20. (1) No company shall be registered by a name which-
(a) is identical with that by which a company in existence is already registered under any of the provisions of this Act or so nearly resembles that name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the Registrar requires;
(b) is identical with the name of any company incorporated outside Brunei and carrying on business. within Brunei which has duly complied with the requirements of Part IX of this Act, or, in the opinion of the Registrar, so nearly resembles that name as to be calculated to deceive except where the said company is about to cease carrying on business in Brunei, and signifies its consent in such manner as the Registrar requires;
(c) is identical with any name registered under any written law providing for the registration of business names, or in the opinion of the Registrar, so nearly resembles that name as to be calculated to deceive;
Provided that if the Registrar is satisfied that a company is being registered for the purpose of tak-
Registrar may accept statutory dec laration as sufficient evi denceof compliance with registra· tion require ments
Restriction on registra tion of com panies by cer tain names
Ll B.L.R.O. 111984
LAWS OF BRUNEI
40 CAP. 39 Companies
ing over any business which is carried on under a registered business name, and will be entitled as against the proprietor of that name to use that name, he may register the company by that name;
(d) in the opinion of the Registrar is likely to mislead the public as to the nature or the objects of the company;
(e) contains the words "Chamber of Com merce", unless the company is a company which is to be registered under a licence granted in pur suance of section 21 without the addition of the word "Berhad" to its name; or
(f) contains the words "Building Society".
(2) Except with the consent of His Majesty no com
pany shall be registered by a name which
(a) contains the words "Royal", or "Di-Raja" or in the opinion of the Registrar suggests, or is calculated to suggest, the patronage of His Majesty or connexion with the Government of Brunei or any department thereof;
(b) in the opinion of the Registrar suggests, or is calculated to suggest, connexion with any munici pality or other local authority;
(c) contains the words "Co-operative"; (d) contains the word "Brunei";
(e) contains the word "Savings"; or
(f) contains the words "Trust" or "Trustee".
LAWS OF BRUNEI
Companies CAP. 39 41
21. (1) Where it is proved to the satisfaction of His Majesty that an association about to be formed as a limited company is to be formed for promoting commerce, art, sci ence, religion, charity, or any other useful object, and in tends to apply its profits, if any, or other income in promot ing its objects, and to prohibit the payment of any dividend to its members, His Majesty may by licence direct that the association may be registered as a company with limited liability, without the addition of the word "Berhad" to its name, and the association may be registered accordingly.
(2) A licence by His Majesty under this section may be granted on such conditions and subject to such regula tions as he may think fit, and those conditions and regula tions shall be binding on the association, and shall, if His Majesty so direct, be inserted in the memorandum and arti cles, or in one of those documents.
(3) The association shall on registration enjoy all the privileges of limited companies, and be subject to all their obligations, except those of using the word ''Berhad" as any part of its name, and of publishing its name, and of sending lists of members to the Registrar of Companies.
Power to dis pense with "Berhad" in name of char itable and other com panies.
(4) A licence under this section may at any time be revoked by His Majesty, and upon revocation the Registrar shall enter the word "Berhad" at the end of the name of the association upon the register, and the association shall cease to enjoy the exemptions and privileges granted by this sec tion: Provided that, before a licence is so revoked, His Majesty shall give to the association notice in writing of his intention, and shall afford the association an opportunity of being heard in opposition to the revocation.
(5) Where the name of the association contains the words "Chamber of Commerce", the notice to be given as aforesaid shall include a statement of the effect of the provi sions of subsection (3) of section 22.
B.L.R.O. 111984
LAWS OF BRUNEI
42
Change of name
CAP. 39 Companies
22. (1) A company may, by special resolution and with --
the prior approval of His Majesty signified in writing,
change its name.
(2) If a company, through inadvertence or other wise, is, without such consent as is mentioned in paragraph (a) of subsection (1) of section 20 registered by a name which is identical with that by which a company in existence is previously registered, or which so nearly resembles that name as to be calculated to deceive, the first-mentioned company may change its name with the sanction of the Reg istrar.
(3) Where a licence granted in pursuance of section
21 to a company the name of which contains the words "Chamber of Commerce" is revoked, the company shall, within a period of 6 weeks from the date of the revocation or such longer period as His Majesty may think fit to allow, change its name to a name which does not contain those words. If a company makes default in complying with the requirements of this subsection, it shall be guilty of an off ence: Penalty, a fine of $250 for every day during which the default continues.
(4) Where a company changes its name, the Reg istrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case.
(5) The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal pro ceedings that might have been continued or commenced against it by its former name may be continued or com menced against it by its new name.
LAWS OF BRUNEI
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GENERAL PROVISIONS WITH RESPECT TO MEMORANDUM AND ARTICLES
23. Subject to the provisions of this Act the memoran dum and articles shall, when registered, bind the company and the members thereof to the same extent as if they re spectively had been signed and sealed by each member, and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles.
24. All money payable by any member of the company under the memorandum or articles shall be a debt due from him to the company, and be of the nature of a speciality debt.
26. (1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any Act which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles, of 50 cents or such sum as the company may with the prior approval of the Registrar prescribe, and, in the case of a copy of an Act, of such sum not exceeding the published price thereof as the company may require.
(2) If a company makes default in complying with this section, the company and every officer of the company
Effect of memoran dum and arti cles
Moneys pay able to be a specialty debt
Alterations in memoran dum or arti cles increas ing liability to contribute to share capital not to bind existing members without con sent
Copies of memoran dum and arti cles to be given to members
B.L.R.O. 111984
LAWS OF BRUNEI
44 CAP. 39 Companies
who is in default shall be guilty of an offence: Penalty, a fine of $100.
Issued copies of memoran dum to em body altera tions
Definition of member
Meaning of private com pany
27. (1) Where an alteration is made in the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.
(2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, it shall be liable to a fine of $15 for each copy so issued, and every officer of the company who is in default shall be liable to the like penalty.
MEMBERSHIP OF COMPANY
28. (1) The subscribers of the memorandum of a com pany shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.
PRIVATE COMPANIES
29. (1) For the purposes of this Act, the expression "pri
vate company" means a company which by its articles-
(a) restricts the right to transfer its shares;
(b) limits the number of its members to fifty, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were
LAWS OF BRUNEI
Companies CAP. 39 45
while in that employment, and have continued after the determination of that employment to be, members of the company; and
(c) prohibits any invitation to the public to sub scribe for any shares or debentures of the com pany.
(2) Where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.
30. (1) If a company, being a private company, alters its articles in such manner that they no longer include the pro visions which, under section 29, are required to be included in the articles of a company in order to constitute it a private company, the company shall, as on the date of the altera tion, cease to be a private company and shall, within a period of 14 days after the said date, deliver to the Registrar for registration a prospectus or a statement in lieu of pros pectus in the form and containing the particulars set out in the Second Schedule.
(2) If default is made in complying with subsection (1), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine of $500.
(3) Where the articles of a company include the pro visions aforesaid but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private com panies under the provisions contained in section 31, subsec tion (3) of section 109, subsection (1) of section 129 and paragraph (d) of section 162, and thereupon the said provi sions shall apply to the company as if it were not a private company: Provided that the Court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or
Circum stances in which com pany ceases to be, or to enjoy pri vileges of, a private com pany
Second
Schedule
B.L.R.O. /1/984
LAWS OF BRUNEI
46 CAP. 39 Companies
that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the Court just and expedient, order that the company be re· lieved from such consequences as aforesaid.
REDUCTION OF NUMBER OF MEMBERS BELOW LEGAL MINIMUM
Prohibition
of carrying on
business with fewer than
seven or, in the case of a private com pany, two members
Form of contracts
31. If at any time the number of members of a company is reduced, in the case of a private company, below two, or, in the case of any other company, below seven, and it carries on business for more than 6 months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those 6 months and is cognisant of the fact that it is carrying on business with fewer than two members, or seven members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.
CONTRACTS, ETC.
32. (1) Contracts on behalf of a company may be made as follows-
(a) a contract which if made between private persons would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company;
(b) a contract which if made between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied;
LAWS OF BRUNEI
Companies CAP. 39 47
(c) a contract which if made between private persons would by law be valid although made by parole only, and not reduced into writing, may be made by parole on behalf of the company by any person acting under its authority, express or im plied.
(2) A contract made according to this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto.
(3) A contract made according to this section may be varied or discharged in the same manner in which it is au thorised by this section to be made.
(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.
35. (1) A company whose objects require or comprise the transaction of business outside Brunei, may, if autho rised by its articles, have for use in any territory, district, or place not situate in Brunei, an official seal, which shall be a facsimile of the common seal of the company, with the addi tion on its face of the name of every territory, district, or place where it is to be used.
Bills of ex changeand promissory notes
Execution of deeds abroad
Power for company to have official seal for use abroad
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LAWS OF BRUNEI
48 CAP. 39 Companies
(2) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.
(3) A company having an official seal for use in any such territory, district or place may, by writing under its common seal, authorise any person appointed for the pur pose in that territory, district or place, to affix the official seal to any deed or other document to which the company is party in that territory, district or place.
(4) The authority of any such agent shall, as between the company and any person dealing with the agent, con tinue during the period, if any, mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent's authority has been given to the person dealing with him.
(5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instru ment, to which the seal is affixed, the date on which and the place at which it is affixed.
Authentica tion of docu ments
Dating and
registration
of prospectus
36. A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorised officer of the company, and need not be under its common seal.
PART II
SHARE CAPITAL AND DEBENTURES PROSPECTUS
37. (1) A prospectus issued by or on behalf of a company or in relation to an intended company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the prospectus.
LAWS OF BRUNEI
Companies CAP. 39 49
(2) A copy of every such prospectus, signed by every person who is named therein as a director or proposed director of the company, or by his agent authorised in writ ing. shall be delivered to the Registrar for registration on or before the date of its publication, and no such prospectus shall be issued until a copy thereof has been so delivered for registration.
(3) The Registrar shall not register any prospectus unless it is dated, and the copy thereof signed, in manner required by this section.
(4) Every prospectus shall state on the face of it that a copy has been delivered for registration as required by this section.
(5) If a prospectus is issued without a copy thereof being so deliverd, the company, and every person who is knowlingly a party to the issue of the prospectus, shall be guilty of an offence: Penalty, a fine of $25 for every day from the date of the issue of the prospectus until a copy thereof is so delivered.
38. (1) Every prospectus issued by or on behalf of a com pany, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, and must state the matters specified in Part I of the Third Sche dule and set out the reports specified in Part II of that Schedule, and the said Parts I and II shall have effect sub ject to the provisions contained in Part III of the said Sche dule.
Specific re quirements as to particulars in prospectus
Third Sche·
dule
(2) A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, shall be void.
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LAWS 01<' BRUNEI
50 CAP. 39 Companies
(3) It shall not be lawful to issue any form of applica -
tion for shares in or debentures of a company unless the
form is issued with a prospectus which complies with the requirements of this section: Provided that this subsection shall not apply if it is shown that the form of application was issued either-
(a) in connexion with an invitation made in good faith to a person to enter into an underwrit ing agreement with respect to the shares or deben tures; or
(b) in relation to shares or debentures which were not offered to the public.
If any person acts in contravention of the provisions of this subsection, he shall be guilty of an offence: Penalty, a fine of $5,000.
(4) In the event of a contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the contravention,
(a) as regards any matter not disclosed, he proves that he was not cognisant thereof;
(b) he proves that the contravention arose from an honest mistake of fact on his part; or
(c) the contravention was in respect of matters which in the opinion of the Court dealing with the case were immaterial or was otherwise such as ought, in the opinion of that Court, having regard to all the circumstances of the case, reasonably to be excused:
Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified
LAWS OF BRUNEI
Companies CAP. 39 51
in paragraph 15 of Part I of the Third Schedule, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed.
(5) This section shall not apply to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons, but, subject as aforesaid, this sec tion shall apply to a prospectus or a form of application whether issued on or with reference to the formation of a company or subsequently.
(6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act apart from this section.
Third Sche
dule
Restriction on alteration of terms men tioned in prospectus or statement in lieu of pros pectus
pany.
(2) This section shall not apply to a private com-
(a) every person who is a director of the com
pany at the time of the issue of the prospectus;
(b) every person who has authorised himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;
LiabilitY for statement in prospectus
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LAWS OF BRUNEI
52 CAP. 39 Companies
(c) every person being a promoter of the com
pany;and
(d) every person who has authorised the issue of the prospectus,
shall be liable to pay compensation to all persons who sub scribe for any shares or debentures on the faith of the pros pectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof, or by refer ence incorporated therein or issued therewith, unless it is proved-
(i) that having consented to become a director of the company he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent;
(ii) that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent;
(iii) that after the issue of the prospectus and be fore allotment thereunder, he, on becoming aware of any untrue statement therein, with drew his consent thereto, and gave reasonable public notice of the withdrawal, and of the reason therefor; or
(iv) that-
(a) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable ground to be lieve, and did up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true;
LAWS OF BRUNEI
Companies CAP. 39 53
(b) as regards every untrue statement pur porting to be a statement by an expert or con tained in what purports to be a copy of or extract from a report or valuation of an ex pert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation; and
(c) as regards every untrue statement pur porting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official docu ment, it was a correct and fair representation of the statement or copy of or extract from the document:
Provided that person shall be liable to pay compensa tion as aforesaid if it is proved that he had no reasonable ground to believe that the person making any such state ment, report or valuation as is mentioned in paragraph (iv) (b) was competent to make it.
(2) Where the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorised or consented to the issue thereof, the directors of the company, except any director without whose knowledge or consent the pros pectus was issued, and any other person who authorised the issue thereof, shall be liable to indemnify the person named as aforesaid against all damages, costs, and expenses to which he may be made liable by reason of his name having been inserted in the prospectus, or in defending himself against any action or legal proceedings brought against him in respect thereof.
(3) Every person who, by reason of his being a direc
tor or named as a director or as having agreed to become a
B.L.R.O. /11984
LAWS OF BRUNEI
54 CAP. 39 Companies
director, or of his having authorised the issue of the pros pectus, becomes liable to make any payment under this section may recover contribution, as in cases of contract, from any other person who, if sued separately, would have been liable to make the same payment, unless the person who has become so liable was, and that other person was not, guilty of fraudulent misrepresentation.
(4) For the purpose of this section -
"promoter" means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in pro curing the formation of the company;
"expert" includes engineer, valuer, accountant, and any other person whose profession gives au thority to a statement made by him.
Document
<...ontaining
offer of shares or de bentures for sale to be deemed pros
pectus
41. (1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed to be a prospectus issued by the company, and all written laws and rules of law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of mis-statements contained in the document or otherwise in respect thereof.
LAWS OF BRUNEI
Companies CAP. 39 55 (2) For the purposes of this Act, it shall, unless the
contrary is proved, be evidence that an allotment of, or an agreement to allot shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown -
(a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or
(b) that at the date when the offer was made the whole consideration to be received by the com pany in respect of the shares or debentures had not been so received.
(3) Section 37 as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company, and sec tion 38 as applied by this section shall have effect as if it required a prospectus to state in addition to the matters required by that section to be stated in a prospectus -
(a) the net amount of the consideration re ceived or to be received by the company in respect of the shares or debentures to which the offer re lates; and
(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected.
(4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by two directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorised in writing.
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LAWS OF BRUNEI
56
Prohibition of allotment unless mini mumsub scription re ceived
Third Sche
dule
CAP. 39 Companies
42. (1) No allotment shall be made of any share capital of a company offered to the public for subscription unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors must be raised by the issue of share capital in order to provide for the matters specified in paragraph 5 in Part I of the Third Schedule has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the com pany. For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the cheque will not be paid.
(2) The amount so stated in the prospectus shall be reckoned exclusively of any amount payable otherwise than in cash and is in this Act referred to as the minimum sub scription.
(3) The amount payable on application on each share shall not be less than 5 per cent of the nominal amount of the share.
(4) If the conditions aforesaid have not been com plied with on the expiration of 40 days after the first issue of the prospectus, all money received from applicants for shares shall be forthwith repaid to them without interest, and, if any such money is not so repaid within 48 days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of 5 per cent per annum from the expira tion of the 48th day: Provided that a director shall not be liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.
(5) Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void.
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Companies CAP. 39 57
(6) This section, except subsection (3), shall not app ly to any allotment of shares subsequent to the first allot ment of shares offered to the public for subscription.
Prohibition of allotment in certain cases unless statement in lieu of pros pectus deli vered to Reg istrar
Fourth Sche
dule
pany.
(2) This section shall not apply to a private com-
(3) If a company acts in contravention of this sec tion, the company and every director of the company who knowingly authorises or permits the contravention shall be guilty of an offence: Penalty, a fine of $5,000.
(2) If any director of a company knowingly con travenes, or permits or authorises the contravention of, any of the provisions of the said sections with respect to allot-
Effect of irregular allotment
B.L.R.O.l/1984
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58 CAP. 39 Companies
ment, he shall be liable to compensate the company and the allottee respectively for any loss, damages, or costs which the company or the allottee may have sustained or incurred thereby: Provided that proceedings to recover any such loss, damages, or costs shall not be commenced after the expira tion of two years from the date of allotment.
Return as to allotments
45. (1) Whenever a company limited by shares or a com pany limited by guarantee and having a share capital makes any allotment of its shares, the company shall within 8 weeks thereafter deliver to the Registrar for registration -
(a) a return of the allotments stating the num ber and nominal amount of the shares comprised in the allotment, the names, addresses, and de scriptions of the allottees and the amount, if any, paid or due and payable on each share; and
(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of allottee to the allot ment together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.
(2) Where such a contract as above-mentioned is not reduced to writing, the company shall within 8 weeks after the allotment deliver to the Registrar for registration the prescribed particulars of the contract stamped with the same stamp duty as would have been payable if the contract had been reduced to writing, and those particulars shall be deemed to be an instrument within the meaning of the
cap. 34 Stamp Act, and the Registrar may, as a condition of filing
LAWS OF BRUNEI
Companies CAP. 39 59
the particulars, require that the duty payable thereon be adjudicated under that Act.
(3) If default is made in complying with this section, every director, manager, secretary, or other officer of the company who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $250 for every day during which the default continues:
Provided that, in case of default in delivering to the Registrar any document within 8 weeks after the allotment any document required to be delivered by this section, the company, or any person liable for the default, may apply to the Court for relief, and the Court, if satisfied that the omis sion to deliver the document was accidental or due to in advertence or that it is just and equitable to grant relief, may make an order extending the time for the delivery of the document for such period as the Court may think prop er.
COMMISSIONS AND DISCOUNTS
46. (1) It shall be lawful for a company to pay a commis sion to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company if -
(a) the payment of the commission is authorised by the articles;
(b) the commission paid or agreed to be paid does not exceed 10 per cent of the price at which the shares are issued or the amount or rate autho rised by the articles, whichever is the less;
(c) the amount or rate per cent of the commis
sion paid or agreed to be paid is -
Power to pay certain com missions, and prohibition of payment of
all other com missions, dis counts, etc.
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60 CAP. 39 Companies
(i) in the case of shares offered to the public for subscription, disclosed in the prospectus; or
(ii) in the case of shares not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statement in the prescribed form signed in like manner as a statement in lieu of prospectus and delivered before the payment of the commission to the Registrar for registration, and, where a circu lar or notice, not being a prospectus, inviting subscription for the shares is issued, also dis closed in that circular or notice; and
(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in manner aforesaid.
(2) Save as aforesaid, no company shaH apply any of its shares or capital money either directly or indirectly in payment of any commission, discount, or allowance to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares or money be so applied by being added to the purchase money of any prop erty acquired by the company or to the contract price of any work to be executed for the company, or the money be paid out of the nominal purchase money or contract price, or otherwise.
(3) Nothing in this section shall affect the power of any company to pay such brokerage as it has heretofore been lawful for a company to pay.
(4) A vendor to, promoter of, or other person who receives payment in money or shares from, a company shall have and shall be deemed always to have had power to
LAWS OF BRUNEI
Companies CAP. 39 61
apply any part of the money or shares so received in pay ment of any commission, the payment of which, if made directly by the company, would have been legal under this section.
(5) If default is made in complying with the provi sions of this section relating to the delivery to the Registrar of the statement in the prescribed form, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a fine of $5,000.
47. (1) Where a company has paid any sums by way of commission in respect of any shares or debentures or allowed any sums by way of discount in respect of any de bentures, the total amount so paid or allowed, or so much, thereof as has not been written off, shall be stated in every balance sheet of the company until the whole amount there of has been written off.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
48. (1) Subject as provided in this section, it shall not be lawful for a company to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the pur pose of or in connexion with a purchase made or to be made by any person of any shares in the company: Provided that nothing in this section shall be taken to prohibit -
(a) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business;
(b) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase by trustees of fully-paid
Statement in balance sheet as to commis sions and dis counts
Prohibition of provision of financial assistance by company for purchase of
its own shares
B.L.R.O. li1984
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62 CAP. 39 Companies
shares in the company to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;
(c) the making by a company of loans to per sons, other than directors, genuinely in the em ployment of the company with a view to enabling those persons to purchase fully-paid shares in the company to be held by themselves by way of bene ficial ownership.
(2) The aggregate amount of any outstanding loans made under the authority of provisos (b) and (c) to sub section (1) shall be shown as a separate item in every ba lance sheet of the company.
(3) If a company acts in contravention of this sec tion, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a fine of
$5,000.
ISSUE OF REDEEMABLE PREFERENCE SHARES AND SHARES AT DISCOUNT
Power to
issue redeem
able prefer
ence shares
(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
(b) no such shares shall be redeemed unless they are fully paid;
LAWS OF BRUNEI
Companies CAP. 39 63 (c) where any such shares are redeemed other
wise than out of the proceeds of a fresh issue, there
shall out of profits which would otherwise have been available for dividend be transferred to a re
serve fund, to be called the capital redemption re serve fund, a sum equal to the amount applied in redeeming the shares, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid-up share capital of the company;
(d) where any such shares are redeemed out of the proceeds of a fresh issue, the premium, if any, payable on redemption, must have been provided for out of the profits of the company before the shares are redeemed.
(2) There shall be included in every balance sheet of a company which has issued redeemable preference shares a statement specifying what part of the issued capital of the company consists of such shares and the date on or before which those shares· are, or are to be liable, to be redeemed.
If a company fails to comply with the provisions of this subsection, the company and every officer of the com pany who is in default shall be guilty of an offence: Penalty, a fine of $5,000.
(3) Subject to the provisions of this section, the re demption of preference shares thereunder may be effected on such terms and in such manner as may be provided by the articles of the company.
(4) Where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued, and accordingly the share capital of
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64 CAP. 39 Companies
the company shall not for the purposes of any written law relating to stamp duty be deemed to be increased by the issue of shares in pursuance of this subsection: Provided that, where new shares are issued before the redemption of the old shares, the new shares shall not, so far as relates to stamp duty, be deemed to have been issued in pursuance of this subsection unless the old shares are redeemed within one month after the issue of the new shares.
(5) Where new shares have been issued in purs ance of subsection (4), the capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company, up to an amount equal to the nominal amount of the shares so issued, in paying up unissued shares of the company to be issued to members of the comvnny as fully paid bonus shares.
Power to issue shares at a discount
50. (1) Subject as provided in this section, it shall be lawful for a company to issue at a discount shares in the company of a class already issued: Provided that -
(a) the issue of the shares at a discount must be authorised by resolution passed in general meeting of the company, and must be sanctioned by the Court;
(b) the resolution must specify the maximum rate of discount at which the shares are to be issued;
(c) not less than one year must at the date of the issue have elapsed since the date on which the company was entitled to commence business; and
(d) the shares to be issued at a discount must be issued within one month after the date on which the issue is sanctioned by the Court or within such extended time as the Court may allow.
LAWS OF BRUNEI
Companies CAP. 39 65
(2) Where a company has passed a resolution au thorising the issue of shares at a discount, it may apply to the Court for an order sanctioning the issue, and on any such application the Court, if, having regard to all the cir cumstances of the case, it thinks proper so to do, may make an order sanctioning the issue on such terms and conditions as it thinks fit.
(3) Every prospectus relating to the issue of the shares and every balance sheet issued by the company sub sequently to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the document in question. If default is made in complying with this subsection, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
51. A company, if so authorised by its articles, may do any one or more of the following things -
(a) make arrangements on the issue of shares for a difference between th:: shareholders in the amounts and times of payment of calls on their shares;
(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;
(c) pay dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
Power of company to arrange for different amounts being paid on shares
Reserve liability of li mitedcom pany
B.L.R.O. I!1984
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66 CAP. 39 Companies
being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes aforesaid.
Power of company li mited by shares to al ter its share capital
53. (1) A company limited by shares or a company li mited by guarantee and having a share capital, if so autho rised by its articles, may alter the conditions of its memoran dum as follows, that is to say, it may -
(a) increase its share capital by new shares of such amount as it thinks expedient;
(b) consolidate and divide all or any of its share capital into shares of larger amount than its ex isting shares;
(c) convert all or any of its paid-up shares into stock, and re-convert that stock into paid-up shares of any denomination;
(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;
(e) cancel shares which, at the date of the pas sing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
(2) The powers conferred by this section must be exercised by the company in general meeting.
LAWS OF BRUNEI
Companies CAP. 39 67
(3) A cancellation of shares in pursuance of this sec tion shall not be deemed to be a reduction of share capital within the meaning of this Act.
54. (1) If a company having a share capital has-
(a) consolidated and divided its share capital into shares of larger amount than its existing shares;
(b) converted any shares into stock; (c) re-converted stock into shares;
(d) subdivided its shares or any of them;
(e) redeemed any redeemable preference shares; or
(f) cancelled any shares, otherwise than in con nexion with a reduction of share capital under sec tion 58,
it shall within one month after so doing give notice thereof to the Registrar of Companies specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock re-converted.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
55. (1) Where a company having a share capital, whether its shares have or have not been converted into stock, has increased its share capital beyond the registered capital, it shall within 15 days after the passing of the resolu-
"- tion authorising the increase, give to the Registrar notice of
the increase, and the Registrar shall record the increase.
Notice to Registrar of consolidation of share capital, con version of shares into stock, etc.
Notice of in crease of share capital
B.L.R.O. 111984
LAWS OF BRUNEI
68 CAP. 39 Companies
(2) The notice to be given as aforesaid shall include -
such particulars as may be prescribed with respect to the
classes of shares affected and the conditions subject to which the new shares have been or are to be issued, and there shall be forwarded to the Registrar together with the notice a printed copy of the resolution authorising the in
crease. -
(3) If default is made in complying with this section,
the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
Powerofun· limited com· pany to pro· vide for re· serve share capital on re registration
Power of company to pay mterest out of capital in certain cases
56. An unlimited company having a share capital may, by its resolution for registration as a limited company in pur suance of this Act, do either or both of the following things, namely-
(a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up except in the event and for the purposes of the company being wound up;
(b) provide that a special portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.
57. (1) Where any shares of a company are issued for the purpose of raising money to defray the expenses of the con struction of any works or buildings or the provision of any plant which cannot be made profitable for a lengthened period, the company may pay interest on so much of that share capital as is for the time being paid up for the period and subject to the conditions and restrictions in this section mentioned, and may charge the sum so paid by way of interest to capital as part of the cost of construction of the work or building, or the provision of plant: Provided that
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Companies CAP. 39 69
(a) no such payment shall be made unless it is authorised by the articles or by special resolution;
(b) no such payment, whether authorised by the articles or by special resolution, shall be made without the previous sanction of the Court;
(c) before sanctioning any such payment the Court may, at the expense of the company, appoint a person to inquire and report to them as to the circumstances of the case, and may before making the appointment, require the company to give security for the payment of the costs of the inquiry;
(d) the payment shall be made only for such period as may be determined by the Court, and that period shall in no case extend beyond the close of the half year next after the half year during which the works or buildings have been actually completed or the plant provided;
(e) the rate of interest shall in no case exceed 4 per cent per annum or such other rate as may for the time being be prescribed by the Court;
(f) the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid;
(g) the accounts of the company shall show the share capital on which, and the rate at which, in terest has been paid out of capital during the period to which the accounts relate.
(2) If default is made in complying with proviso (g) to subsection (1), the company and every officer of the com pany who is in default shall be guilty of an offence: Penalty, a fine of $5,000.
B.L.R.O. 111984
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70 CAP. 39 Companies
REDUCTION OF SHARE CAPITAL
Special re solution for reduction of share capital
Application to Court for confirming order, objec tions by cre ditors, and settlement of list of object ing creditors
58. (1) Subject to confirmation by the Court, a company limited by shares or a company limited by guarantee and having a share capital may, if so authorised by its articles, by special resolution reduce its share capital in any way, and in particular, without prejudice to the generality of the fore going power, may -
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
(b) either with or without extinguishing or re ducing liability on any of its shares, cancel any paid-up share capital which is lost or unrepre sented by available assets; or
(c) either with or without extinguishing or re ducing liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company,
and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
(2) A special resolution under this section is in this
Act referred to as a resolution for reducing share capital.
(2) Where the proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital or the payment to any shareholder of any paid up share capital, and in any other case if the Court so directs, the following provisions shall have effect, subject nevertheless to the next following subsection
LAWS OF BRUNEI
Companies CAP. 39 71
(a) every creditor of the company who at the date fixed by the Court is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction;
(b) the court shall settle a list of creditors so entitled to object, and for that purpose shall ascer tain, as far as possible without requiring an ap plication from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction;
(c) where a creditor entered on the list whose debt or claim is not discharged or has not deter mined does not consent to the reduction, the Court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the Court may direct, the following amount
(i) if the company admits the full amount of the debt or claim, or, though not admitting it is willing to provide for it, then the full amount of the debt or claim;
(ii) if the company does not admit and is not will ing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the Court after the like inquiry and adjudication as if the company were being wound up by the Court.
!>ll B.L.R.O. 111984
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72 CAP. 39 Companies
(3) Where a proposed reduction of share capital in volves either the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital, the Court may, if having regard to any special circumstances of the case it thinks proper so to do, direct that subsection (2) shall not apply as regards any class or any classes of creditors.
Order con firming re duction and powers of Court on making such order
60. (1) The Court, if satisfied, with respect to every cre ditor of the company who under section 59 is entitled to object to the reduction, that either his consent to the reduc tion has been obtained or his debt or claim has been dis charged or has determined, or has been secured, may make an order confirming the reduction on such terms and condi tions as it thinks fit.
(2) Where the Court makes any such order, it may-
(a) if for any special reason it thinks proper so to do, make an order directing that the company shall, during such period, commencing on or at any time after the date of the order as is specified in the order, add to its name as the last words thereof the words "and reduced''; and
(b) make an order requiring the company to publish as the Court directs the reasons for reduc tion or such other information in regard thereto as the Court may think expedient with a view to giv ing proper information to the public, and, if the Court thinks fit, the causes which led to the reduc tion.
(3) Where a company is ordered to add to its name the words "and reduced", those words shall, until the ex piration of the period specified in the order, be deemed to be part of the name of the company.
LAWS OF BRUNEI
Companies CAP. 39 73
61. (1) The Registrar, on production to him of an order Registration
0f the Court confirmm.
g the red ucti.On 0f the share capi.taI0f of order and
a company, and the delivery to him of a copy of the order duction
and of a minute approved by the Court, showing with re- spect to the share capital of the company, as altered by the order, the amount of the share capital, the number of shares into which it is to be divided, and the amount of each share, and the amount, if any, at the date of the registration deemed to be paid up on each share, shall register the order and minute.
(2) On the registration of the order and minute, and not before, the resolution for reducing share capital as con firmed by the order so registered shall take effect.
(3) Notice of the registration shall be published in such manner as the Court may direct.
(4) The Registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclusive evidence that all the requirements of this Act with respect to reduction of share capital have been com plied with, and that the share capital of the company is such as is stated in the minute.
(5) The minute when registered shall be deemed to be substituted for the corresponding part of the memoran dum, and shall be valid and alterable as if it had been origi nally contained therein.
(6) The substitution of any such minute as aforesaid for part of the memorandum of the company shall be deemed to be an alteration of the memorandum within the meaning of section 27.
62. (1) In the case of a reduction of share capital, a mem ber of the company, past or present, shall not be liable in respect of any share to any call or contribution exceeding in amount the difference, if any, between the amount of the
Liability of members respect of re duced shares
B.L.R.O. 111984
LAWS OF BRUNEI
74
Penalty on coneealment of name of creditor
share as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be: Provided that, if any creditor, entitled in respect of any debt or claim to object to the reduction of share capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his claim, not entered on the list of
creditors, and, after the reduction, the company is unable, - within the meaning of the provisions of this Act with respect
to winding up by the Court, to pay the amount of his debt or claim, then-
(a) every person who was a member of the com pany at the date of the registration of the order for reduction and minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had com menced to be wound up on the day before the said date; and
(b) if the company is wound up, the Court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, settle accordingly a list of persons so liable to con tribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding up.
(2) Nothing in this section shall affect the rights of the contributories among themselves.
63. If any director, manager, secretary or other officer of the company -
(a) wilfully conceals the name of any creditor entitled to object to the reduction;
LAWS OF BRUNEI
Companies CAP. 39 75
(b) wilfully misrepresents the nature or amount of the debt or claim of any creditor; or
(c) aids, abets or is privy to any such conceal
ment or misrepresentation as aforesaid,
he shall be guilty of an offence: Penalty, imprisonment for one year and a fine.
VARIATION OF SHAREHOLDERS' RIGHTS
64. (1) If in the case of a company, the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorising the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanc tion of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of the said provi sion the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than 15 per cent of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the Court to have the variation cancelled, and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the Court.
(2) An application under this section must be made within 7 days after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the shareholders entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
(3) On any such application the Court, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested in the
Rights of hol ders of spe cial classes of shares
B.L.R.O. l/1984
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76 CAP. 39 Companies
application, may, if it is satisfied, having regard to all the circumstances of the case, that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation and shall, if not so satisfied, confirm the variation.
(4) The decision of the Court on any such applica
tion shall be final.
(5) The company shall within 15 days after the mak ing of an order by the Court on any such application forward a copy of the order to the Registrar, and, if default is made in complying with this provision, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
(6) The expression "variation" in this section in cludes abrogation and the expression "varied" shall be con strued accordingly.
TRANSFER OF SHARES AND DEBENTURES, EVIDENCE OF TITLE
Nature of shares
Transfer not to be reg istered except on produc tion of instru ment of transfer
(2) Each share in a company having a share capital shall be distinguished by its appropriate number.
LAWS OF BRUNEI
Companies CAP. 39 77
shares in or debentures of the company has been transmit
ted by operation of law.
69. (1) If a company refuses to register a transfer of any shares or debentures, the company shall, within 2 months after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.
(2) If default is made in complying with this section, the company and every director, manager, secretary or other officer of the company who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues.
Transfer by personal rep resentative
Registration of transfer at request of transferor
Notice of re fusal to regis ter transfer
Duties of company with respect to issue of certificates
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78 CAP. 39 Companies
transfer as the company is for any reason entitled to refuse to register and does not register.
(2) If default is made in complying with this section, the company and every director, manager, secretary or other officer of the company who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues.
(3) If any company on whom a notice has been served requiring the company to make good any default in complying with the provisions of subsection (1) fails to make good the default within 10 days after the service of the notice, the Court may, on the application of the person entitled to have the certificate or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the applica tion shall be borne by the company or by any officer of the company responsible for the default.
Certificate to be evidence
of title
Evidence of grant of prob ate
Issue and
·effect of
share war
rants to
bearer
71. A certificate, under the common seal of the company, specifying any shares held by any member, shall be evidence until the contrary be proved of the title of the member to the shares.
72. The production to a company of any document which is by law sufficient evidence of probate of the will, or letters of administration of the estate, or confirmation as executor, of a deceased person having been granted to some person shall be accepted by the company, notwithstanding anything in its articles, as sufficient evidence of the grant.
73. (1) A company limited by shares, if so authorised by its articles, may, with respect to any full paid-up shares, issue under its common seal a warrant stating that the bear er of the warrant is entitled to the shares therein specified, and may provide, by coupons or otherwise, for the payment
LAWS OF BRUNEI
Companies CAP. 39 79
of the future dividends on the shares included in the war
rant.
(2) Such a warrant as aforesaid is in this Act termed a share warrant.
(3) A share warrant shall entitle the bearer thereof to the shares therein specified, and the shares may be trans ferred by delivery of the warrant.
SPECIAL PROVISIONS AS TO DEBENTURES
75. (1) Every register of holders of debentures of a com pany shall, except when duly closed, be open to the inspec tion of the registered holder of any such debentures, and of any holder of shares in the company, but subject to such reasonable restrictions as the company may in general meet ing impose, so that not less than two hours in each day shall be allowed for inspection. For the purposes of this subsec tion, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the articles or in the debentures or, in the case of debenture stock, in the stock certificates, or in the trust deed or other document securing the debentures or debenture stock, during such period or periods, not exceeding in the whole 30 days in any year, as may be therein specified.
(2) Every registered holder of debentures and every holder of shares in a company may require a copy of the
Penalty for personation of sharehol der
Right of de benture hol ders and shareholders to inspect register of de benture hol ders and to have copies
of trust deed
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LAWS OF BRUNEI
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Perpetual debentures
Power tore issue re deemed de benturesin
certain cases
CAP. 39 Companies
register of the holders of debentures of the company or any part thereof on payment of 50 cents for every hundred words required to be copied.
(3) A copy of any trust deed for securing any issue of debentures shall be forwarded to every holder of any such debentures at his request on payment in the case of a printed trust deed of the sum of one dollar or such less sum as may be prescribed by the company, or, where the trust deed has not been printed, on payment of 50 cents for every hundred words required to be copied.
(4) If inspection is refused, or a copy is refused or not forwarded, the company and every officer of the com pany who is in default shall be guilty of an offence: Penalty, a fine of $500, and a default fine of $20.
(5) Where a company is in default as aforesaid, the Court may by order compel an immediate inspection of the register or direct that the copies required shall be sent to the person requiring them.
76. A condition contained in any debentures or in any deed for securing any debentures shall not be invalid by reason only that the debentures are thereby made irredeem able or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.
77. (1) Where after the commencement of this Act a company has redeemed any debentures previously issued, then
(a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the com pany; or
LAWS OF BRUNEI
Companies CAP. 39 81 (b) unless the company has, by passing a resolu
tion to that effect or by some other act, manifested
its intention that the debentures shall be cancelled,
the company shall have, and shall be deemed always to have had, power to re-issue the debentures, either by re-issuing the same debentures or by issuing other debentures in their
- place.
(2) On a re-issue of redeemed debentures the person
entitled to the debentures shall have, and shall be deemed
always to have had, the same priorities as if the debentures had never been redeemed.
(3) Where a company has power to re-issue deben tures which have been redeemed, particulars with respect to the debentures which can be so re-issued shall be included in every balance sheet of the company.
(4) Where a company has after the passing of this Act deposited any of its debentures to secure advances from time to time on current account or other rent account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures remained so deposited.
(5) The re-issue of a debenture or the issue of another debenture in its place under the power by this sec tion given to, or deemed to have been possessed by, a com pany, shall be treated as the issue of a new debenture for the purposes of stamp duty, but it shall not be so treated for the purposes of any provision limiting the amount or number of debentures to be issued: Provided that any person lending money on the security of a debenture re-issued under this section which appears to be duly stamped may give the debenture in evidence in any proceedings for enforcing his security without payment of the stamp duty or any penalty in respect thereof, unless he had notice or, but for his negli-
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gence, might have discovered, that the debenture was not duly stamped, but in any such case the company shall be liable to pay the proper stamp duty and penalty.
Specific per formance of contracts to subscribe for debentures
Payment of certain debts out of assets subject to floating charge in priority to claims under the charge
78. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.
79. (1) Where, in the case of a company registered in Brunei, either a receiver is appointed on behalf of the hol ders of any debentures of the company secured by a floating charge, or possession is taken by or on behalf of those de benture holders of any property comprised in or subject to the charge, then, if the company is not at the time in course of being wound up, the debts, which in every winding-up are under the provisions of Part V relating to preferential pay ments to be paid in priority to all other debts, shall be paid out of any assets coming to the hands of the receiver or other person taking possession as aforesaid in priority to any claim for principal or interest in respect of the debentures_
(2) The period of time mentioned in the said provi sions of Part V shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.
(3) Any payments made under this section shall be recouped as far as may be out of the assets of the company available for payment of general creditors.
LAWS OF BRUNEI
Companies CAP. 39 83
PART III REGISTRATION OF CHARGES
REGISTRATION OF CHARGES WITH REGISTRAR OF COMPANIES
(2) The section applies to the following charges-
(a) a charge for the purpose of securing any issue of debentures;
(b) a charge on uncalled share capital of the company;
(c) a charge created or evidenced by an instru ment which, if executed by an individual, would require registration as a bill of sale;
(d) a charge on land, wherever situate, or any interest therein;
(e) a charge on book debts of the company;
Registration of charges created by companies registered in Brunei
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84 CAP. 39 Companies
(j) a floating charge on the undertaking or prop
erty of the company;
(g) a charge on calls made but not paid;
(h) a charge on a ship or any share in a ship;
(i) a charge on goodwill, on a patent or a licence under a patent, on a trademark or on a copyright or a licence under a copyright.
(3) In the case of a charge created out of Brunei comprising solely property situate outside Brunei the deliv ery to and the receipt by the Registrar of a copy verified in the prescribed manner of the instrument by which the charge is created or evidenced, shall have the same effect for the purposes of this section as the delivery and receipt of the instrument itself, and 5 weeks after the date on which the instrument or copy could, in due course of post, and if despatched with due diligence, have been received in Brunei shall be substituted for 5 weeks after the date of the creation of the charge, as the time within which the particu lars and instrument or copy are to be delivered to the Reg istrar.
(4) Where a charge is created in Brunei but compris es property outside Brunei the instrument creating or pur porting to create the charge may be sent for registration under this section notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.
(5) Where a negotiable instrument has been given to secure the payment of any book debts of a company the deposit of the instrument for the purpose of securing an advance to the company shall not for the purposes of this section be treated as a charge on those book debts.
LAWS OF BRUNEI
Companies CAP. 39 85
(6) The holding of debentures entitling the holder to a charge on land shall not for the purposes of this section be deemed to be an interest in land.
(7) Where a series of debentures containing, or giv ing by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled in equal degree is created by a company, it shall for the purposes of this section be sufficient if there are deli vered to or received by the Registrar within 5 weeks after the execution of the deed containing the charge or, if there is no such deed, after the execution of any debentures of the series, the following particulars
(a) the total amount secured by the whole series; and
(b) the dates of the resolutions authorising the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and
(c) a general description of the property charged; and
(d) the names of the trustees, if any, for the debenture holders,
together with the deed containing the charge, or, if there is no such deed, one of the debentures of the series: Provided that, where more than one issue is made of debentures in the series, there shall be sent to the Registrar for entry in the register particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.
(8) Where any commission, allowance, or discount has been paid or made either directly or indirectly by a company to any person in consideration of his subscribing or
B.L.R.O. I!l984
LAWS OF BRUNEI
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Duty of com pany to regis ter charges created by company
CAP. 39 Companies
agreeing to subscribe, whether absolutely or conditionally, -
for any debentures of the company, or procuring or
agreeing to procure subscriptions, whether absolute or con ditional, for any such debentures, the particulars required to be sent for registration under this section shall include par ticulars as to the amount of rate per cent of the commission, discount, or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued: Provided that the deposit of any debentures as security for any debt of the company shall not for the purposes of this subsection be treated as the issue of the debentures at a discount.
(9) In this Part "charge" includes mortgage.
81. (1) It shall be the duty of a company to send to the Registrar for registration the particulars of every charge created by the company and of the issues of debentures of a series, requiring registration under section 80, but registra tion of any such charge may be effected on the application of any person interested therein.
(2) Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the Registrar on the registra tion.
(3) If any company makes default in sending to the Registrar for registration the particulars of any charge cre ated by the company, or of the issues of debentures of a series, requiring registration as aforesaid, then, unless the registration has been effected on the application of some other person, the company and every director, manager, secretary or other person, who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $250 for every day during which the default continues.
LAWS OF BRUNEI
Companies CAP. 39 87
82. (1) Where after the commencement of this Act a company registered under this Act acquires any property which is subject to a charge of any such kind as would, if it had been created by the company after the acquisition of the property, have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, together with a copy (certified in the prescribed manner to be a correct copy) of the instrument, if any, by which the charge was created or is evidenced, to be deli vered to the Registrar for registration in manner required by this Act within 5 weeks after the date on which the acquisi tion is completed: Provided that, if the property is situate and the charge was created outside Brunei, 5 weeks after the date on which the copy of the instrument could in due course of post, and if despatched with due diligence, have been received by Brunei shall be substituted for 5 weeks after the completion of the acquisition as the time within which the particulars and the copy of the instrument are to be delivered to the Registrar.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine of $250.
83. (1) The Registrar shall keep, with respect to each company, a register in the prescribed form of all the charges requiring registration under this Part, and shall, on payment of the prescribed fee, enter in the register with respect to such charges the following particulars -
·- (a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in subsec tion (7) of section 80;
(b) in the case of any other charge -
(i) if the charge is a charge created by the com
pany, the date of its creation, and if the charge
Duty of com pany to regis ter charges existing on property ac quired
Register of charges to be kept by Reg istrar
B.L.R.O.l/1984
LAWS OF BRUNEI
88
Endorsement of certificate of registra tion on de bentures
was a charge existing on property acquired by -
the company, the date of the acquisition of the
property;
(ii) the amount secured by the charge;
(iii) short particulars of the property charged; and
(iv) the persons entitled to the charge.
(2) The Registrar shall give a certificate under his hand of the registration of any charge registered in pur suance of this Part stating the amount thereby secured, and the certificate shall be conclusive evidence that the require ments of this Part as to registration have been complied with.
(3) The register kept in pursuance of this section shall be open to inspection by any person on payment of the prescribed fee, not exceeding $5 for each inspection.
(4) The Registrar shall keep a chronological index, in the prescribed form and with the prescribed particulars, of the charges entered in the register.
(2) If any person knowingly and wilfully authorises or permits the delivery of any debenture or certificate of debenture stock which under the provisions of this section is required to have endorsed on it a copy of a certificate of registration without the copy being so endorsed upon it, he
LAWS OF BRUNEI
Companies CAP. 39 89
shall, without prejudice to any other liability, be guilty of an offence: Penalty, a fine of $5,000.
85. The Registrar may, on evidence being given to his satisfaction that the debt for which any registered charge was given has been paid or satisfied, order that a memoran dum of satisfaction be entered on the register, and shall, if required, furnish the company with a copy thereof.
86. The Court, on being satisfied that the omission to register a charge within the time required by this Act, or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfac tion, was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as seem to the Court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or mis statement shall be rectified.
87. (1) If any person obtains an order for the appoint ment of a receiver or manager of the property of a company, or appoints such a receiver or manager under any powers contained in any instrument, he shall, within seven days from the date of the order or of the appointment under the said powers, give notice of the fact to the Registrar, and the Registrar shall, on payment of the prescribed fee, enter the fact in the register of charges.
(2) Where any person appointed receiver or mana ger of the property of a company under the powers con tained in any instrument ceases to act as such receiver or manager, he shall, on so ceasing, give the Registrar notice to that effect, and the Registrar shall enter the notice in the register of charges.
Entry of satisfaction
Rectification of register of charges
Registration of enforce ment of security
B.L.R.O.l/1984
LAWS OF BRUNEI
90 CAP. 39 Companies
(3) If any person makes default in complying with the requirements of this section, he shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues.
PROVISIONS AS TO COMPANY'S REGISTER OF CHARGES AND AS TO COPIES OF INSTRUMENTS CREATING CHARGES
Copies of in struments creating charges to be kept by com pany
Company's register of charges
Right to in spect copies of instru
ments creHt
ing mort gagesand charges and company's
register of chHrges
88. Every company shall cause a copy of every instru ment creating any charge requiring registration under this Part to be kept at the registered office of the company: Provided that, in the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.
89. (1) Every limited company shall keep at the reg istered office of the company a register of charges and enter therein all charges specifically affecting property of the com pany and all floating charges on the undertaking or any property of the company, giving in each case a short descrip tion of the property charged, the amount of the charge, and, except in the case of securities to bearer, the names of the persons entitled thereto.
(2) If any director, manager, or other officer of the company knowingly and wilfully authorises or permits the omission of any entry required to be made in pursuance of this section, he shall be guilty of an offence: Penalty a fine of
$5,000.
90. (1) The copies of instruments creating any charge requiring registration under this Part with the Registrar, and the register of charges, kept in pursuance of section 89, shall be open during business hours (but subject to such reason able restrictions as the company in general meeting may impose, so that not less than two hours in each day shall be allowed for inspection) to the inspection of any creditor or member of the company without fee, and the register of
LAWS OF BRUNEI
Companies CAP. 39 91
charges shall also be open to the inspection of any other person on payment of such fee, not exceeding $5 for each inspection, as the company may prescribe.
(2) If inspection of the said copies or register is re fused, any officer of the company refusing inspection, and every director and manager of the company authorising or knowingly and wilfully permitting the refusal, shall be guilty of an offence: Penalty, a fine of $500, and a further fine of
$20 for every day during which the refusal continues.
(3) If any such refusal occurs in relation to a com pany registered in Brunei, the Court may by order compel an immediate inspection of the copies or register.
APPLICATION OF PART III TO COMPANIES INCORPORATED OUTSIDE BRUNEI
91. The provisions of this Part shall extend to charges on property in Brunei which are created, and to charges on property in Brunei which is acquired, after the commence ment of this Act, by a company (whether a company within the meaning of this Act or not) incorporated outside Brunei which has an established place of business in Brunei.
PART IV
MANAGEMENT AND ADMINISTRATION REGISTERED OFFICE AND NAME
92. (1) A company shall, as from the day on which it begins to carry on business or as from the twenty-eighth day after the date of its incorporation, whichever is the earlier, have a registered office in Brunei to which all communica tions and notices may be addressed.
Application of Part III to company in corporated outside Brunei
Registered office of com- pany ·
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92 CAP. 39 Companies
Publication of name by company
(2) Notice of the situation of the registered office, and of any change therein, shall be given within twenty eight days after the date of the incorporation of the com pany or of the change, as the case may be, to the Registrar, who shall record the same. The inclusion in the annual re turn of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this subsection.
(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
(a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a con spicuous position, in letters easily legible;
(b) shall have its name engraven in legible char
acters on its seal; and
(c) shall have its name mentioned in legible characters in all notices, advertisements, and other official publications of the company, and in all bills of exchange, promissory notes, indorsements, che ques, and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices, receipts, and letters of credit of the company.
(2) If a company does not paint or affix its name in manner directed by this Act, the company and every officer of the company who is in default shall be guilty of an off ence: Penalty, a fine of $250, and if a company does not keep its name painted or affixed in manner so directed, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
LAWS OF BRUNEI
Companies CAP. 39 93
(3) If a company fails to comply with any of the provisions of subsections (1) and (2) the company shall be guilty of an offence: Penalty, a fine of $500.
(4) If a director, manager, or officer of a company, or any person on its behalf
(a) uses or authorises the use of any seal pur porting to be a seal of the company whereon its name is not so engraven as aforesaid;
(b) issues or authorises the issue of any notice, advertisement, or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, prom issory note, indorsement, cheque, or order for money or goods, wherein its name is not men tioned in manner aforesaid; or
(c) issues or authorises the issue of any bill of parcels, invoice, receipt, or letter of credit of the company, wherein its name is not mentioned in manner aforesaid;
he shall be guilty of an offence: Penalty, a fine of $500 and shall further be personally liable to the holder of the bill of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless it is by the company.
-
RESTRICTIONS ON COMMENCEMENT OF BUSINESS
94. (1) Where a company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless
Restrictions on com mencement of business
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(a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription;
(b) every director of the company has paid to the company, on each of the shares taken or con tracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and
(c) there has been delivered to the Registrar for registration a statutory declaration by the secretary or one of the directors, in the prescribed form, that the aforesaid conditions have been complied with.
(2) Where a company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers, unless-
(a) there has been delivered to the Registrar for registration a statement in lieu of prospectus;
(b) every director of the company has paid to the company, on each of the shares taken or con tracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and
(c) there has been delivered to the Registrar for registration a statutory declaration by the secretary or one of the directors in the prescribed form that paragraph (b) has been complied with.
(3) The Registrar shall, on the delivery to him of the said statutory declaration, and, in the case of a company
LAWS OF BRUNEI
Companies CAP. 39 95
which is required by this section to deliver a statement in lieu of prospectus, of such a statement, certifying that the company is entitled to commence business, and that certi ficate shall be conclusive evidence that the company is so entitled.
(4) Any contract made by a company before the date at which it is entitled to commence business shall be pro visional only, and shall not be binding on the company until that date, and on that date it shall become binding.
(5) Nothing in this section shall prevent the simul taneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on applica tion for debentures.
(6) If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, with out prejudice to any other liability, be guilty of an offence: Penalty, a fine of $250 for every day during which the con travention continues.
(7) If a company fails to obtain a certificate to com mence business within one year of the date of its incorpora tion, the Registrar shall send by registered post to the com pany ai its registered office a letter calling upon the com pany to apply for the said certificate.
(8) If the company fails to obtain the said certificate within one month of the posting of the said letter, the Reg istrar shall publish in the Gazette a notice to that effect that the company will be strm:k off the register if it fails to obtain the said certificate within two months after the publication of the said notice.
(9) If the company fails to obtain the said certificate within two months of the publication of the said notice, the Registrar shall strike the company off the register and shall
B.L.RO. 111984
LAWS OF BRUNEI
96 CAP. 39 Companies
publish in the Gazette a notification to the effect that the company has been struck off the register.
(10) Upon the publication in the Gazette of the said notification, the company shall be deemed to be dissolved.
(11) If any company is struck off the register or dis solved under the provisions of this section, the Court, on the application of the company or of any member or creditor thereof may, on any ground which may seem fit to the Court, order that the company be restored to the register, either permanently or temporarily, and may make such res toration subject to any condition which may seem fit to the Court.
(12) Upon the making of any such order, the com pany shall be restored to the register and shall, subject to any order which the Court may make, be deemed to have continued in existence as if it had not been struck off the register, and the Court may give any directions which may seem necessary in the circumstances.
(13) If no office of the company has been registered, copies of the letter referred to in subsection (7) shall be sent by the Registrar by registered post to each of the persons who subscribed the memorandum of the company at the respective addresses given therein.
(14) Nothing in this section shall apply to a private company.
REGISTER OF MEMBERS
Register of members
95. (1) Every company shall keep in one or more books, a register of its members, and enter therein the following particulars -
LAWS OF BRUNEI
Companies CAP. 39 97
(a) the names and addresses, and the occupa tions, if any, of the members, and in the case of a company having a share capital a statement of the shares held by each member, distinguishing each share by its number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(b) the date at which each person was entered in the register as a member;
(c) the date at which any person ceased to be a member: Provided that, where the company has converted any of its shares into stock and given notice of the conversion to the Registrar, the regis ter shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a).
(2) If default is made in complying with this section the company and every officer of the company who is in default shall be liable to a default fine.
96. (1) Every company having more than 50 members Indexof
sh a11 , un1ess the regt.ster of members . m.
sueh a form as to
members of company
constitute in itself an index, keep an index of the names of the members of the company and shall, within fourteen days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.
(2) The index, which may be in the form of a card index, shall in respect of each member contain a sufficient indication to enable the account of that member in the regis ter to be readily found.
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(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
Provisions as to entries in register in re lation to share war rants
97. (1) On the issue of a share warrant the company shall strike out of its register of members the name of the mem ber then entered therein as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely -
(a) the fact of the issue of the warrant;
(b) a statement of the shares included in the warrant, distinguishing each share by its number; and
(c) the date of the issue of the warrant.
(2) The bearer of a share warrant shall, subject to the articles of the company, be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members.
(3) The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares therein specified without the warrant being surrendered and cancelled.
(4) Until the warrant is surrendered, the particulars specified in subsection (1) shall be deemed to be the particu lars required by this Act to be entered in the register of members, and, on the surrender, the date of the surrender must be entered. ·
(5) Subject to the provisions of this Act, the bearer of a share warrant may, if the articles of the company so provide, be deemed to be a member of the company, either to the full extent or for any purposes defined in the articles.
LAWS OF BRUNEI
Companies CAP. 39 99
98. (1) The register of members, commencing from the date of the registration of the company, and the index of the names of members, shall be kept at the registered office of the company, and, except when the register is closed under the provisions of this Act, shall during business hours (sub ject to such reasonable restrictions as the company in gener al meeting may impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member without charge and of any other person on payment of $5 or such less sum as the company may pre scribe, for each inspection.
(2) Any member or other person may require a copy of the register, or of any part thereof, on payment of 50 cents, or such less sum as the company may prescribe, for every hundred words or fractional part thereof required to be copied. The company shall cause any copy so required by any person to be sent to that person within a period of 10 days commencing on the day next after the day on which the requirement is received by the company.
(3) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper period, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, in respect of each offence a fine of $200 and a default fine of $20.
(4) In the case of any such refusal or default, the Court may by order compel an immediate inspection of the register and index or direct that the copies required shall be sent to the persons requiring them.
99. A company may, on giving notice by advertisement in some newspaper in Brunei, close the register of members for any time or times not exceeding in the whole 30 days in each year.
Inspection of register of members
Power to close register
B.L. R. 0. 111984
LAWS OF BRUNEI
100 CAP. 39 Companies
Power of 100. (1) If-
Court to rec
tify register
(a) the name of any person is, without sufficient
cause, entered in or omitted from the register of members of a company; or
(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member;
the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register.
(2) Where an application is made under this section, the Court may either refuse the application or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved.
(3) On an application under this section the Court may decide any question relating to the title of any person who is a party to the application to have this name entered in or omitted from the register, whether the question arises between members or alleged members, or between mem bers or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.
(4) In the case of a company required by this Act to send a list of its members to the Registrar, the Court, when making an order for rectification of the register, shall by its order direct notice of the rectification to be given to the Registrar.
Trustsnotto 101. No notice of any trust, expressed, implied, or con-
rbeegeisntteerredon
struet•tve, shaII be entered on the reg·ister, or be recet·vabie
by the Registrar, in the case of companies registered m
Brunei.
LAWS OF BRUNEI
Companies CAP. 39 101
LOCAL OR BRANCH REGISTERS
(2) An annual fee at the rate of two cents for every hundred dollars of the paid-up capital of the company to which the licence is issued shall be paid by such company in respect of such licence. Such fees shall be paid to the Registrar within 4 months of the date of the licence.
(3) When the Registrar has reasonable cause to be lieve that a company is keeping in any place where it trans acts business outside Brunei a register of members, without out having a valid licence under this Act, he shall publish in the Gazette and send to the company a notice that at the expiration of 2 months from the date of such notice the
Register to
be evidence
Power for company to keep local or branch regis ter
B.L.R.O. JIJ984
LAWS OF BRUNEI | ||
102 | CAP. 39 Companies | |
name of the company mentioned therein will, unless cause to the contrary is shown, be struck off the register and the | - | |
company will be dissolved. |
(4) At the expiration of the time mentioned in the notice, the Registrar may, unless cause to the contrary is previously shown by the company, strike the name of the company off the register and shall publish notice thereof in the Gazette, and on such publication the company whose name is so struck off shall be dissolved: Provided that the liability, if any, of every director, managing officer, and member of the company shall continue and may be enforced as if the company had not been dissolved.
(5) If any company or member thereof feels aggrieved by the name of such company having been struck off the register in pursuance of this section, the company or member may apply to the Court, and the Court, if it is satisfied that it is just to do so, may order the name of the company to be restored to the register, and thereupon the company shall be deemed to have continued in existence as if the name had never been struck off and the Court may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position, as nearly as may be, as if the name of the company had never been struck off.
(6) A letter or notice under this section may be addressed to the company as its registered office, or, if no office has been registered, to the care of some director or officer of the company, or if there is no director or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who sub scribed the memorandum, addressed to him at the address mentioned in the memorandum.
(7) If default is made in complying with subsection (2), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
LAWS OF BRUNEI
Companies CAP. 39 103
(2) It shall be kept in the same manner in which the principal register is by this Act required to be kept, except that the advertisement before closing the register shall be inserted in some newspaper circulating in Brunei.
(3) The company shall transmit to its registered office a copy of every entry in its local or branch register as soon as may be after the entry is made, and shall cause to be kept at its registered office, duly entered up from time to time, a duplicate of its local or branch register. Every such duplicate shall, for all the purposes of this Act, be deemed to be part of the principal register.
(4) Subject to the provisions of this section with re spect to the duplicate register, the shares registered in a local or branch register shall be distinguished from the shares registered in the principal register, and no transac tion with respect to any shares registered in a local or branch register shall, during the continuance of that registration, be registered in any other register.
(5) A company may discontinue to keep a local or branch register, and thereupon all entries in that register shall be transferred to some other local or branch register kept by the company or to the principal register.
(6) Subject to the provisions of this Act, any com pany may, by its articles, make such provisions as it may think fit respecting the keeping of local or branch registers.
(7) If default is made in complying with subsection (3), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
Regulations as to branch register
Nl B.L.R.O.lll984
LAWS OF BRUNEI
104
CAP. 39 Companies
Exemption from certain duties in case of shares reg istered in loc al branch reg isters
Provisions as to branch registers of companies kept in Brunei
Annual re turn to be made by company having a share capital
105. (1) An instrument of transfer of a share registered in a local or branch register, shall be deemed to be a transfer of property situate out of Brunei, and, unless executed in any part of Brunei, shall be exempt from stamp duty chargeable in Brunei.
(2) No estate duty shall be payable in respect of the share or other interest of a deceased member registered in a local or branch register kept out of Brunei under this Act.
106. If by virtue of the law in force in any foreign country, companies incorporated under the law of that foreign coun try and registered in Brunei under Part IX of the Act, have power to keep in Brunei local or branch registers of their members resident in Brunei, His Majesty in Council may by order direct that sections 98 and 100 shall, subject to any modifications and adaptations specified in the order, apply to and in relation to any such local or branch registers kept in Brunei as they apply to and in relation to the registers of companies within the meaning of this Act.
ANNUAL RETURN
107. (1) Every company having a share capital shall once at least in every year make a return containing a list of all persons who, on the day of the fircst or only ordinary general meeting in the year, are members of the companyand of all persons who have ceased to be members since the date of the last return or, in the case of the first return, of the incorporation of the company.
(2) The list must state the names, addresses, and occupations of all the past and present members therein mentioned and the number of shares held by each of the existing members at the date of the return, specifying shares transferred since the date of the last return or, in the case of the first return, of the incorporation of the company by
LAWS OF BRUNEI
Companies CAP. 39 105
persons who are still members and have. ceased to be mem bers respectively and the dates of registration of the trans fers, and, if the names therein are not arranged in alphabetical order, must have annexed to it an index suf ficient to enable the name of any person in the list to be readily found: Provided that, where the company has con verted any of its shares into stock and given notice of the conversion to the Registrar, the list must state the amount of stock held by each of the existing members instead of the amount of shares and the particulars relating to shares he reinbefore required.
(3) The return must also state the address of the registered office of the company and must contain a sum mary distinguishing between shares issued for cash and shares issued as fully or partly paid up otherwise than in cash, and specifying the following particulars -
(a) the amount of the share capital of the com pany, and the number of the shares into which it is divided;
(b) the number of shares taken from the com mencement of the company up to the date of the return;
(c) the amount called up on each share;
(d) the total amount of calls received;
- (e) the total amount of calls unpaid;
(f) the total amount of the sums, if any, paid by
way of commission in respect of any shares or de
bentures;
(g) particulars of the discount allowed on the issue of any shares issued at a discount, or of so much of that discount as has not been written off at the date on which the return is made;
B.L.R.O. 111984
LAWS OF BRUNEI
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CAP. 39 Companies
(h) the total amount of the sums, if any, allowed - by way of discount in respect of any debentures,
since the date of the last return;
(i) the total number of shares forfeited;
(j) the total amount of shares for which share warrants are outstanding at the date of the return;
(k) the total amount of share warrants issued and surrendered respectively since the date of the last return;
(l) the number of shares comprised in each share warrant;
(m) all such particulars with respect to the per sons who at the date of the return are the directors of the company as are by this Act required to be contained with respect to directors in the register of the directors of a company;
(n) the total amount of the indebtedness of the company in respect of all mortgages and charges which are required to be registered with the Reg istrar under this Act.
Fifth
Schedule
(4) The return shall be in accordance with the form set out in the Fifth Schedule, or as near thereto as circum stances admit.
(5) In the case of a company keeping a branch regis ter, the particulars of the entries in that register shall, so far as they relate to matters which are required to be stated in the return, be included in the return made next after copies of those entries are received at the registered office of the company.
LAWS OF BRUNEI
Companies CAP. 39 107
108. (1) Every company not having a share capital shall once at least in every year make a return stating -
(a) the address of the registered office of the company;
(b) all such particulars with respect to the per sons who at the date of the return are the directors of the company as are by this Act required to be contained with respect to directors in the register of directors of a company.
(2) There shall be annexed to the return a statement containing particulars of the total amount of the indebted ness of the company in respect of all mortgages and charges which are required to be registered with the Registrar under this Act.
109. (1) The annual return must be contained in a sepa rate part of the register of members and must be completed within 28 days after the first or only general meeting in the year, and the company must forthwith forward to the Reg istrar a copy signed by a director or by the manager or by the secretary of the company.
(2) Section 98 shall apply to the annual return as it applies to the register of members.
Annual re turn to be made by company not
having share
capital
General pro visions as to annual re turns
(3) Except where the company is a private company, the annual return shall include a written copy, certified by a director or the manager or secretary of the company to be a true copy, of the last balance sheet which has been audited by the company's auditors, including every document re quired by law to be annexed thereto, together with a copy of the report of the auditors thereon certified as aforesaid, and if any such balance sheet is in a foreign language there shall also be annexed to it a translation thereof in such language as may be prescribed by the Registrar, certified in the pre scribed manner to be a correct translation: Provided that, if
B.L.R.O. 111984
LAWS OF BRUNEI
108
the said last balance sheet did not comply with the require ments of the law as in force at the date of the audit with respect to the form of balance sheets, there shall be made such additions to and corrections in the said copy as would have been required to be made in the said balance sheet in order to make it comply with the said requirements, and the fact that the said copy has been so amended shall be stated thereon.
(4) If a company contravenes this section or section
107 or 108, the company and every officer of the company who is in default shall be liable to tCfetaidt fine.
(5) For the purposes of subsection (4), the express ion "officer", and for the purposes of sections 107 and 108 the expression "director", shall include any person in accordance with whose directions or instructions the direc tors of the company are accustomed to act.
Certificates to be sent by private com pany with annual return
Annual general meet ing
110. A private company shall send with the annual return required by section 107 a certificate signed by a director or the secretary of the company that the company has not, since the date of the last return, or, in the case of a first return, since the date of the incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company, and, where the annual return discloses the fact that the number of members of the company exceeds 50, also a certificate so signed that the excess consists wholly of persons who, under paragraph (b) of subsection (1) of section 29, are not to be included in reckoning the number of 50.
MEETINGS AND PROCEEDINGS
111. (1) A general meeting of every company shall be held once at the least in c;;y }]: x . r' and not more than 15 months after the holding offfie last preceding general meet ing.
LAWS OF BRUNEI
Companies CAP. 39 109
(2) If default is made in holding a meeting of the company in accordance with the provisions of this section, the company, and every director or manager of the com pany who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $2,500.
(3) If default is made as aforesaid, the Court may, on the application of any member of the company, call, or direct the calling of, a general meeting of the company.
(2) The directors shall, at least 7 days before the day on which the meeting is held, forward a report (in this Act referred to as "the statutory report") to every member of the company.
(3) The statutory report shall be certified by not less than two directors of the company, or, where there are less than two directors, by the sole director and manager, and shall state
(a) the total number of shares allotted, disting uishing shares allotted as fully or partly paid up otherwise than in cash, and stating in the case of shares partly paid up the extent to which they are so paid up, and in either case the consideration for which they have been allotted;
(b) the total amount of cash received by the company in respect of all the shares allotted, dis tinguished as aforesaid;
Statutory meeting and srattJtory re port
B.L.R.O. 111984
LAWS OF BRUNEI
110 CAP. 39 Companies
(c) an abstract of the receipts of the company and of the payments made thereout, up to a date within 7 days of the date of the report, exhibiting under distinctive headings the receipts of the com pany from shares and debentures and other sources, the payments made thereout, and particu lars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company;
(d) the names, addresses, and descriptions of the directors, auditors, if any, managers, if any, and secretary of the company; and
(e) the particulars of any contract, the modifica tion of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification.
(4) The statutory report shall, so far as it relates to the shares allotted by the company, and to the cash received in respect of such shares, and to the receipts and payments of the company on capital account, be certified as correct by the auditors, if any, of the company.
(5) The directors shall cause a copy of the statutory report, certified as required by this section, to be delivered to the Registrar for registration forthwith after the sending thereof to the members of the company.
(6) The directors shall cause a list showing the names, descriptions, and addresses of the members of the company, and the number of shares held by them respec tively, to be produced at the commencement of the meeting, and to remain open and accessible to any member of the company during the continuance of the meeting.
(7) The members of the company present at the meeting shall be at liberty to discuss any matter relating to
LAWS OF BRUNEI
Companies CAP. 39 111
the formation of the company, or arising out of the statutory report, whether previous notice has bet?n given or not, but no resolution of which notice has not been given in accord ance with the articles may be passed.
(8) The meeting may adjourn from time to time, and at any adjourned meeting any resolution of which notice has been given in accordance with the articles, either before or subsequently to the former meeting, may be passed, and the adjourned meeting shall have the same powers as an orig inal meeting.
(9) In the event of any default in complying with the provisions of this section every director of the company who is guilty of or who knowingly and wilfully authorises or permits the default shall be guilty of an offence: Penalty, a fine of $2,500.
pany.
(10) This section shall not apply to a private com-
113. (1) The directors of a company, notwithstanding anything in its articles shall, on the requisition of members of the company holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up capital of the company as at the date of the deposit carries the right of voting at general meetings of the company, or, in the case of a company not having a share capital, mem bers of the company representing not less than one-tenth of the total voting rights of all the members having at the said date a right to vote at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.
(2) The requisition must state the objects of the meeting, and must be signed by the requisitionists and depo sited at the registered office of the company, and may con sist of several documents in like form, each signed by one or more requisitionists.
Convening of extraordinary f!eneral meet mgon re quisition
B.L.R.O.ll1984
LAWS OF BRUNEI
112
CAP. 39 Companies
(3) If the directors do not within 21 days from the date of the deposit of the requisition proceed duly to con vene a meeting, the requisitionists, or any of them repre senting more than one-half of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration 3 months from the said date.
(4) A meeting convened under this section by the requisitionists shall be convened in the same manner, as nearly as possible, as that in which meetings are to be con vened by directors.
(5) Any reasonable expenses incurred by the requisi tionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company, and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of ks or other remuneration in respect of their services to such of the directors as were in default.
(6) For the purposes of this section, the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such notice thereof as is required by section 116.
Provisions as to meetings and votes
114. (1) The following provisions shall have effect in so far as the articles of the company do not make other provi sion in that behalf -
(a) a meeting of a company, other than a meet· ing for the passing of a special resolution, may be called by 7 days' notice in writing;
(b) notice of the meeting of a company shall be served on every member of the company in the
LAWS OF BRUNEI
Companies CAP. 39 113
manner in which notices are required to be served by Table A, and for the purpose of this paragraph the expression "Table A" means that tab1e as for the time being in force;
(c) two or more members holding not less than one-tenth of the issued share capital or, if the com pany has not a share capital, not less than 5 per cent in number of the members of the company may call a meeting;
(d) in the case of a private company two mem bers, and in the case of any other company three members, personally present shall be a quorum;
(e) any member elected by the members present at a meeting may be chairman thereof;
(f) in the case of a company originally having a share capital, every member shall have one vote in respect of each share or each one hundred dollars of stock held by him, and in any other case every member shall have one vote.
(2) If for any reason it is impracticable to call a meet ing of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in manner prescribed by the articles or this Act, the Court may, either of its own motion or on the applica tion of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and con ducted in such manner as the Court thinks fit, and where any such order is made may give such ancillary or conse quential directions as it thinks expedient, and any meeting called, held and conducted in accordance with any such order shall for all purposes be deemed to be a meeting of the company duly called, held and conducted.
B.L.R.O. 111984
LAWS OF BRUNEI
114
Representa tion of com panies at meetings of other com panies and of creditors
CAP. 39 Companies
115. (1) A corporation, whether a company within the ·-
meaning of this Act or not, may -
(a) if it is a member of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company;
(b) if it is a creditor (including a holder of de bentures) of another corporation, being a com pany within the meaning of this Act, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representa tive at any meeting of any creditors of the company held in pursuance of this Act or of any rules made thereunder, or in pursuance of the provisions con tained in any debenture or trust deed, as the case may be.
(2) A person authorised as aforesaid shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual shareholder, creditor, or holder of de bentures, of that other company.
Provisions as to extraordin ary and spe cial resolu tions
116. (1) A resolution shall be an extraordinary resolution when it has been passed by a majority of not less than three-fourths of such members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been duly given.
(2) A resolution shall be a special resolution when it has been passed by such a majority as is required for the
LAWS OF BRUNEI
Companies CAP. 39 115
passing of an extraordinary resolution and at a general meeting of which not less than 21 days' notice 1 specifying the intention to propose the resolution as a special resolu tion, has been duly given: Provided that, if all the members entitled to attend and vote at any such meeting so agree, a resolution may be proposed and passed as a special resolu tion at a meeting of which less than 21 days' notice has been given.
(3) At any meeting at which an extraordinary resolu tion or a special resolution is submitted to be passed, a declaration of the chairman that the resolution is carried shall, unless a poll is demanded, be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
(4) At any meeting at which an extraordinary resolu tion or a special resolution is submitted to be passed a poll shall be taken to be effectively demanded, if demanded -
(a) by such number of members for the time being entitled under the articles to vote at the meeting as may be specified in the articles, so however, that it shall not in case be necessary for more than 5 members to make the demand; or
(b) if no provision is made by the articles with respect to the right to demand the poll, by 3 mem bers so entitled or by one member or 2 members so entitled, if that member holds or those 2 members together hold not less than 15 per cent of the paid up share capital of the company.
(5) When a poll is demanded in accordance with this section, in computing the majority on the poll reference shall be had to the number of votes to which each member is entitled by virtue of this Act or of the articles of the com pany.
B.L.R.O.ll1984
LAWS OF BRUNEI
116
Registration and copies of certain re solutions and agreements
CAP. 39 Companies
(6) For the purposes of this section, notice of a meet -
ing shall be deemed to be duly given and the meeting to be
duly held when the notice is given and the meeting held in manner provided by this Act or the articles.
117. (1) A printed copy of every resolution or agreement to which this section applies shall, within 15 days after the passing or making thereof, be forwarded to the Registrar and recorded by him.
(2) Where articles have beeo registered, a copy of every such resolution or agreement for the time being in force shall be embodied in or annexed to every copy of the articles issued after the passing of the resolution or the mak ing of the agreement.
(3) Where articles have not been registered, a printed copy of every such resolution or agreement shall be forwarded to any member at his request, on payment of one dollar or such sum as the company with the approval of the Registrar direct.
(4) This section shall apply to -
(a) special resolutions;
(b) extraordinary resolutions;
(c) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless, as the case may be, they had been. passed as special resolutions or as extraordinary resolutions;
(d) resolutions or agreements which have been agreed to by all the members of some class of shareholders, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority
LAWS OF BRUNEI
Companies CAP. 39 117
or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders though not agreed to by all those members;
(e) resolutions requiring a company to be wound up voluntarily, passed under paragraph (a) of subsection (1) of section 213.
(5) If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine of $50.
(6) If a company fails to comply with subsection (2). or (3), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a fine of $15 for each copy in respect of which default is made.
(7) For the purposes of subsections (5) and (6), a liquidator of the company shall be deemed to be an officer of the company.
118.
of-
Where a resolution is passed at an adjourned meeting Resolutions passed at ad journed meetings
(a) a company;
(b) the holders of any class of shares in a com
pany;
(c) the directors of a company,
the resolution shall for all purposes be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.
B.L.R.O. l!J984
LAWS OF BRUNEI
118
Minutes of proceedings of meeting and directors
Inspection of minute books
ceedings of general meetings, and where there are directors
or managers, of all proceedings at meetings of its directors or of its managers, to be entered in books kept for that purpose.
(2) Any such minute if purporting to be signed by the chairman of the meeting at which the proceedings were had, or by the chairman of the next succeeding meeting, shall be evidence of the proceedings.
(3) Where minutes have been made in accordance with the provisions of this section of the proceedings at any general meeting of the company or meeting of directors or managers, then, until the contrary is proved, the meeting shall be deemed to have been duly held and convened, and all proceedings had thereat to have been duly had, and all appointments of directors, managers, or liquidators, shall be deemed to be valid.
(2) Any member shall be entitled to be furnished, within 7 days after he has made a request in that behalf to the company,with a copy of any such minutes as aforesaid at a charge not exceeding 50 cents for every hundred words.
(3) If any inspection required under this section is
refused or if any copy required under this section is not sent '""·
within the proper time, the company and every officer of
each company who is in default shall be guilty of an offence:
LAWS OF BRUNEI
Companies CAP. 39 119
Penalty, in respect of each offence, a fine of $200 and a default of $20.
(4) In the case of any such refusal or default, the Court may by order compel an immediate inspection of the books in respect of all proceedings of general meetings or direct that the copies required shall be sent to the persons requiring them.
ACCOUNTS AND AUDIT
(a) all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;
(b) all sales and purchases of goods by the com
pany;
(c) the assets and liabilities of the company. And for this purpose every company shall cause to be
kept the following books, namely -
(i) a cash book or books which shall contain a full and complete record of all sums of money paid to the company or to any agent of the company and of all sums of money expended by the company or by any agent of the com pany and of the matters in respect of which such receipt and expenditure take place: Pro vided that, there shall also be kept a book which shall contain a daily summary of all the receipts and payments which are recorded in
Keeping of books of account
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LAWS OF BRUNEI
120 CAP. 39 Companies
the cash book or books. There shall be set out -
in such summary under appropriate heads the
daily totals of receipts and payments in such a manner as to show clearly their respective sources and the accounts in respect of which
they are made, and full particulars shall be
given in respect of all receipts and payments on account of capital and of all payments made to directors of the company. The entries in such book shall in every case be made at a date not later than one month from the date under which the transactions of which they are
a record are entered in the cash book or books;
(ii) a journal or other book or books in which shall be recorded all financial transactions of the company other than cash transactions and all transactions which in any way affect the accretions and diminutions on capital and re venue accounts of the company with full ex planations of such transactions;
(iii) a ledger or other book or books in which shall be entered each to its proper account the transactions recorded in the cash book and journal so as to show the financial relations of the company with every party with whom it has dealings and the financial position of the company itself.
(2) The books of account shall be kept at the reg istered office of the company or at such other place as the directors think fit, and shall at all times be open to inspec tion by the directors.
(3) If any person being a director of a company fails to take all reasonable steps to secure compliance by the
LAWS OF BRUNEI
Companies CAP. 39 121
company with the requirements of this section, or has by his own wilful act been the cause of any default by the company thereunder, he shall be guilty of an offence: Penalty, in respect of each offence, imprisonment for 2 years or a fine of $5,000: Provided that a person shall not be sentenced to imprisonment for an offence under this section unless, in the opinion of the Court dealing with the case, the offence was committed wilfully.
(1) The directors of every company shall at some
Profit and loss account
date not later than 18 months after the incorporation of the
company and subsequently once at least in every calendar year lay before the company in general meeting a profit and loss account or, in the case of a company not trading for profit, an income and expenditure account for the period, in
the case of the first account, since the incorporation of the company, and, in any other case, since the preceding account, made up to a date not earlier than the date of the meeting by more than 9 months, or, in the case of a com pany, carrying on business or having interests abroad, by more than 12 months: Provided that the Court, if for any special reason they think fit so to do, may, in the case of any company, extend the period of 18 months aforesaid, and in the case of any company and with respect to any year extend the periods of 9 and 12 months aforesaid.
(2) The directors shall cause to be made out in every calendar year, and to be laid before the company in general meeting, a balance sheet as at the date to which the profit and loss account, or the income and expenditure account, as the case may be, is made up, and there shall be attached to every such balance sheet a report by the directors with re spect to the state of the company's affairs, the amount, if any, which they recommend should be paid by way of di vidend, and the amount, if any, which they propose to carry to the reserve fund, general reserve or reserve account shown specifically on the balance sheet, or to a reserve fund, general reserve or reserve account to be shown specifically on a subsequent balance sheet.
and balance
sheet
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LAWS OF BRUNEI
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CAP. 39 Companies
(3) If any person being a director of a company fails to take all reasonable steps to comply with the provisions of this section, he shall be guilty of an offence: Penalty, in respect of each offence, imprisonment for 2 years or a fine of $5,000: Provided that a person shall not be sentenced to imprisonment for an offence under this section unless, in the opinion of the Court dealing with the case, the offence was committed wilfully.
Contents of balance sheet
123. (1) Every balance sheet of a company shall contain a summary of the authorised share capital and of the issued share capital of the company, its liabilities and its assets, together with such particulars as are necessary to disclose the general nature of the liabilities and the assets of the company and to distinguish between the amounts respec tively of the fixed assets and of the floating assets, and shall state how the values of the fixed assets have been arrived at.
(2) There shall be stated under separate headings in the balance sheet, so far as they are not written off -
(a) the preliminary expenses of the company; (b) any expenses incurred in connexion with
any issue of share capital or debentures; and
(c) if it is shown as a separate item in or is other wise ascertainable from the books of the company, or from any contract for the sale or purchase of any property to be acquired by the company, or from any documents in the possession of the company relating to the stamp duty payable in respect of any such contract or the conveyance of any such prop erty, the amount of the goodwill and of any patents and trade marks as so shown or ascertained.
(3) Where any liability of the company is secured otherwise than by operation of law on any assets of the company, the balance sheet shall include a statement that
LAWS OF BRUNEI
Companies CAP. 39 123 that liability is so secured, but it shall not be necessary to
specify in the balance sheet the assets on which the liability
is secured.
(4) The provisions of this section are in addition to other provisions of this Act requiring other matters to be stated in balance sheets.
124. Where any of the assets of a company consist of shares in, or amounts owing (whether on account of a loan or otherwise) from a subsidiary company or subsidiary com panies, the aggregate amount of those assets, distinguishing shares and indebtedness, shall be set out in the balance sheet of the first mentioned company separately from all its other assets, and where a company is indebted, whether on account of a loan or otherwise, to a subsidiary company or subsidiary companies, the aggregate amount of that inde btedness shall be set out in the balance sheet of that com pany separately from all its other liabilities.
(a) provision has been made for the losses of a subsidiary company either in the accounts of that company or of the holding company, or of both; and
Assets eon· sisting of shares in sub sidiary com panies to be set out separ ately in ba lance sheet
Balance sheet to include particulars as to subsidiary companies
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LAWS OF BRUNEI
124 CAP. 39 Companies
(b) losses of a subsidiary company have been taken into account by the directors of the holding company in arriving at the profits and losses of the holding company as disclosed in accounts:
Provided that it shall not be necessary to specify in any such statement the actual amount of the profits or losses of any subsidiary company, or the actual amount of any part of any such profits or losses which has been dealt with in any particular manner.
(2) If in the case of a subsidiary company the au ditors' report on the balance sheet of the company does not state without qualification that the auditors have obtained all the information and explanations they have required and that the balance sheet is properly drawn up so as to exhibit a true and correct view of the state of the company's affairs according to the best of their information and the explana tions given to them and as shown by the books of the com pany, the statement which is to be annexed as aforesaid to the balance sheet of the holding company shall contain par ticulars of the manner in which the report is qualified.
(3) For the purposes of this section, the profits or losses of a subsidiary company mean the profits or losses shown in any accounts of the subsidiary company made up to a date within the period to which the accounts of the holding company relate, or, if there are no such accounts of the subsidiary company available at the time when the accounts of the holding company are made up, the profits or losses shown in the last previous accounts of the subsidiary company which became available within that period.
(4) If for any reason the directors of the holding company are unable to obtain such information as is neces sary for the preparation of the statement aforesaid, the directors who sign the balance sheet shall so report in writ ing and their report shall be annexed to the balance sheet in lieu of the statement.
LAWS OF BRUNEI
Companies CAP. 39 125
126. (1) Where the assets of a company consist in whole or in part of shares in another company, whether held directly or through a nominee and whether that other com pany is a company within the meaning of this Act or not, and
(a) the amount of the shares so held is at the time when the accounts of the holding company are made up more than 50 per cent of the issued share capital of that other company or such as to entitle the company to more than 50 per cent of the voting power in that other company; or
(b) the company has power (not being power vested in it by virtue only of the provisions of a debenture trust deed or by virtue of shares issued to it for the purpose in pursuance of those provi sions) directly or indirectly to appoint the majority of the directors of that other company,
that other company shall be deemed to be a subsidiary com pany within the meaning of this Act, and the expression "subsidiary company" in this Act means a company in the case of which the conditions of this section are satisfied.
(2) Where a company the ordinary business of which includes the lending of money holds shares in another com pany as security only, no account shall for the purpose of determining under this section whether that other company
- is a subsidiary company be taken of the shares so held.
127. (1) The accounts which in pursuance of this Act are to be laid before every company in general meeting shall, subject to the provisions of this section, contain particulars showing-
(a) the amount of any loans which during the period to which the accounts relate have been
Meaning of subsidiary company
Accounts to contain par ticulars as to loans to, and remuneration of, directors, etc.
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LAWS OF BRUNEI
126 CAP. 39 Companies
made either by the company or by any other per -
son under a guarantee from or on a security pro
vided by the company to any director or officer of the company, including any such loans which were repaid during the said period;
(b) the amount of any loans made in manner aforesaid to any director or officer at any time be fore the period aforesaid and outstanding at the expiration thereof; and
(c) the total of the amount paid to the directors as remuneration for their services, inclusive of all fees, percentages, or other emoluments, paid to or receivable by them by or from the company or by or from any subsidiary company.
(2) The provisions of subsection (1) with respect to loans shall not apply -
(a) in the case of a company the ordinary busi ness of which includes the lending of money to a loan made by the company in the ordinary course of its business; or
(b) to a loan made by the company to any em
ployee of the company if the loan does not exceed
$20,000 and is certified by the directors of the com pany to have been made in accordance with any practice adopted or about to be adopted by the company with respect to loans to its employees.
(3) The provisions of subsection (1) with respect to the remuneration paid to directors shall not apply in relation to a managing director of the company, and in the case of any other director who holds any salaried employment or office in the company there shall not be required to be included in the said total amount any sums paid to him except sums paid by way of directors' fees.
LAWS OF BRUNEI
Companies CAP. 39 127
(4) If in the case of any such accounts as aforesaid the requirements of this section are not complied with, it shall be the duty of the auditors of the company by whom the accounts are examined to include in their report on the balance sheet of the company, so far as they are reasonably able to do so, a statement giving the required particulars.
(5) In this section the expression "emoluments" in cludes fees, percentages and other payments made or con sideration given, directly or indirectly, to a director as such, and the money value of any allowances or perquisites be longing to his office.
Signing of balance sheet
(2) In the case of a banking company, the balance sheet must be signed by the secretary or manager, if any, and where there are more than three directors of the com pany by at least three of those directors, and where there are not more than three directors by all the directors.
(3) If any copy of a balance sheet which has not been signed as required by this section is issued circulated, or published, or if any copy of a balance sheet is issued, circu lated, or published without having a copy of the auditors' report attached thereto, the company, and every director, manager, secretary, or other officer of the company who is knowingly a party to the default, shall be guilty of an off ence: Penalty, a fine of $5,000.
company -
eeive copies of balance sheets and auditors' re-
(a) a copy of every balance sheet, including port
every document required by law to be annexed
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LAWS OF BRUNEI
128 CAP. 39 Companies
thereto, which is to be laid before the company in -
general meeting, together with a copy of the au
ditors' report, shall, not less than 7 days before the date of the meeting, be sent to all persons entitled to receive notices of general meetings of the com pany;
(b) any member of the company, whether he is or is not entitled to have sent to him copies of the company's balance sheets, and any holder of de bentures of the company, shall be entitled to be furnished on demand without charge with a copy of the last balance sheet of the company, including every document required by law to be annexed thereto, together with a copy of the auditors' re port on the balance sheet.
If default is made in complying with paragraph (a), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a fine of $200, and if, where any person makes a demand for a document with which he is by virtue of paragraph (b) entitled to ·be fur nished, default is made in complying with the demand with in 7 days after the making thereof, the company and every director, manager, secretary or other officer of the company who is knowingly a party to the default shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues, unless it is proved that that person has already made a demand for and been furnished with a copy of the document.
(2) In the case of a company being a private com pany, any member shall be entitled to be furnished, within 7 days after he has made a request in that behalf to the com pany, with a copy of the balance sheet and auditors' report at a charge not exceeding 50 cents for every hundred words. If default is made in furnishing such a copy to any member who demands it and tenders to the company the amount of the proper charge therefor, the company and every officer
LAWS OF BRUNEI
Companies CAP. 39 129
of the company who is in default shall be guilty of an off
ence: Penalty, a default fine.
130. (1) Every company, being an insurance company or a deposit, provident, or benefit society, shall, before it com mences business, and also on the first Monday in February and the first Tuesday in August in every year during which it carries on business, make a statement in the form set out in the Sixth Schedule, or as near thereto as circumstances admit.
(2) A copy of the statement shall be put up in a conspicuous place in the registered office of the company, and in every branch office or place where the business of the company is carried on.
(3) Every member and every creditor of the com pany shall be entitled to a copy of the statement, on pay ment of a sum not exceeding one dollar.
(4) If default is made in complying with this section, the company and every director and manager of the com pany who knowingly and wilfully authorises or permits the default shall be guilty of an offence: Penalty, a fine of $2,000 and a default fine of $50 for every day during which the default continues.
(5) For the purposes of this Act a company which carries on the business of insurance in common with any other business or businesses shall be deemed to be an insur ance company.
Special provi sions relating to insurance and certain other com panies
Sixth
Schedule
131. (1) Every company shall at each annual general Appointment
meetm•
g appom•
t an auditor or auditors to hold office until
and remun- eration of
the next annual general meeting. auditors
(2) If an appointment of auditors is not made at an annual general meeting, the Court may, on the application of any member of the company, appoint an auditor of the company for the current year.
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LAWS OF BRUNEI
130 CAP. 39 Companies
(3) The Clerk of Council shall publish annually by -
notification in the Gazette a list in 2 parts containing the
names of all persons who are authorised by His Majesty in Council to perform the duties required by this Act to be performed by an auditor, and shall from time to time simi larly publish the names of persons added to or removed from any part of the last published annual list by order of
His Majesty in Council. The last published annual list as so amended shall be deemed the current authorised list. His Majesty in Council shall not order the insertion of the name of any person in any part of any such list unless he deems him in all respects fit and suitable to be authorised. His Majesty in Council may in his absolute discretion by order remove the name of any authorised auditor who has ceased to practice in Brunei; he may also on any ground which he may deem sufficient, remove the name of any person he may consider unfit or unsuitable to continue to be autho rised; but in such last mentioned case notice shall be given, if practicable, to the person whose name it is proposed to remove and he may if so required to be heard by His Majes ty in Council either in person or by advocate, before such removal is made. The first part of the current authorised list shall contain the names of persons authorised to audit accounts kept in English; and the second part shall contain the names of persons authorised to audit accounts kept in a language other than English. Where the accounts of a com pany are kept in English, no person shall be appointed au ditor unless his name appears in the first part of the current authorised list, and where the accounts of a company are kept in a language other than English, no person shall be appointed auditor unless his name appears in the second part of the current authorised list as a person authorised to audit accounts in such language. Every company which keeps its accounts partly in English and partly in a language other than English shall have its accounts audited as to that part which is kept in English by a person whose name appears in the first part of the current authorised list and as to that part which is kept in a language other than English by a person whose name appears in the second part of the
LAWS OF BRUNEI
Companies CAP. 39 131 current authorised list as a person authorised to audit
- accounts in such language. Nothing herein shall be deemed
to prevent His Majesty in Council authorising the inclusion
of a name in both parts of the current authorised list; and nothing herein shall be deemed to require a second auditor for the daily summary in the English language referred to in the proviso in subsection (1) of section 121. In this subsec tion person shall include a firm.
(4) A person, other than a retiring auditor, shall not be capable of being appointed auditor at an annual general meeting unless notice of an intention to nominate that per son to the office of auditor has been given by a member to the company not less than 14 days before the annual general meeting, and the company shall send a copy of any such notice to the retiring auditor, and shall give notice thereof to the members, either by advertisement or in any other mode allowed by articles, not less than 7 days before the annual general meeting: Provided that if, after notice of the inten tion to nominate an auditor has been so given, an annual general meeting is called for a date 14 dayor less after the notice has been given, the notice, though not given within the time required by this subsection, shall be deemed to have been properly given for the purposes thereof, and the notice to be sent or given by the company may, instead of being sent or given within the time required by this subsec tion, be sent or given at the same time as the notice of the annual general meeting.
(5) Subject as hereinafter provided, the first auditors of the company may be appointed by the directors at any time before the first annual general meeting, and auditors so appointed shall hold office until that meeting: Provided that
(a) the company may at a general meeting of which notice has been served on the auditors in the same manner as on members of the company re move any such auditors and appoint in their place
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LAWS OF BRUNEI
132
any other persons being persons who have been nominated for appointment by any member of the company and of whose nomination notice has been given to the members of the company not less than
7 days before the date of the meeting; and
(b) if the directors fail to exercise their powers under this subsection, the company in general meeting may appoint the first auditors, and there upon the said powers of the directors shall cease.
(6) The directors may fill any casual vacancy in the office of auditor, but while any such vacancy continues the surviving or continuing auditor or auditors, if any, may act.
(7) The remuneration of the auditors of a company shall be fixed by the company in general meeting, except that the remuneration of an auditor appointed before the first annual general meeting, or of an auditor appointed to fill a casual vacancy, may be fixed by the directors, and that the remuneration of an auditor appointed by the Court may be fixed by the Court.
Disqualifica- 132. None of the following persons shall be qualified for
appointment appointment as auditor of a company -
as auditor
(a) a director or officer of the company;
(b) except where the company is a private com pany, a person who is a partner of or in the em ployment of an officer of the company;
(c) a body corporate.
Auditors' re port and au ditors' right of access to books and right to
attend ener
. al meettngs
LAWS OF BRUNEI
Companies CAP. 39 133
(a) whether or not they have obtained all the information and explanations they have required; and
(b) whether, in their opinion, the balance sheet referred to in the report is properly drawn up so as to exhibit a true and correct view of the state of the company's affairs according to the best of their information and the explanations given to them, and as shown by the books of the company.
(2) Every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the company, and shall be entitled to require from the direc tors and officers of the company such information and ex planation as may be necessary for the performance of the duties of the auditors: Provided that, in the case of a bank ing company which has branch banks beyond the limits of Brunei, it shall be sufficient if the auditor is allowed access to such copies and extracts from such books and accounts of any such branch as have been .transmitted to the head office of the company in Brunei.
(3) The auditors of a company shall be entitled to attend any general meeting of the company at which any accounts which have been examined or reported on by them are to be laid before the company and to make any state ment or explanation they desire with respect to the accounts.
INSPECTION
134. (1) The Court may appoint one or more competent Investigation
m· spectors to m· vestt·gate the affairs of
a company and to
of affairs of company by
report thereon in such manner as the Court may direct - inspectors
(a) in the case of a banking company having a share capital, on the application of members hold ing not less than one-third of the shares issued;
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LAWS OF BRUNEI | |||
134 | CAP. 39 | Companies | |
(b) in the case of any other company having a share capital, on the application of members hold- | - |
ing not less than one-tenth of the shares issued;
(c) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company's register
of members. -
(2) The application shall be supported by such evi dence as the Court may require for the purpose of showing that the applicants have good reason for, and are not actu ated by malicious motives in, requiring the investigation, and the Court may, before appointing an inspector, require the applicants to give security, to an amount not exceeding
$10,000, for payment of the costs of the inquiry.
(3) It shall be the duty of all officers and agents of the company to produce to the inspectors all books and documents in their custody or power.
(4) An inspector may examine on oath the officers and agents of the company in relation to its business, and may administer an oath accordingly.
(5) If any officer or agent of the company refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company, the inspectors may certify the refusal under their hands to the Court, and the Court may thereupon inquire into the case, and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any state ment which may be offered in defence, punish the offender in like manner as if he had been guilty of contempt of the Court.
LAWS OF BRUNEI
Companies CAP. 39 135
(6) On the conclusion of the investigation the inspec tors shall report their opinion to the Court which shall direct that a copy of the report be forwarded to the registered office of the company. A further copy shall, at the request of the applicants for the investigation, be delivered to them. The report shall be written or printed, as the Court may direct.
135. (1) If from any report made under section 134 it appears to the Court that any person has been guilty of any offence in relation to the company for which he is criminally liable, the Court may direct that the matter shall be referred to the Public Prosecutor.
(2) If where any matter is referred to the Public Pro secutor under this section he considers that the case is one in which a prosecution ought to be instituted and, further, that it is desirable in the public interest that the proceedings in the prosecution should be conducted by him, he shall insti tute proceedings accordingly, and it shall be the duty of all officers and agents of the company, past and present (other than the defendant in the proceedings), to give to him all assistance in connexion with the prosecution which they are reasonably able to give.
For the purposes of this subsection, the expression "agents" in relation to a company shall be deemed to in clude the bankers and solicitors of the company and any persons employed by the company as auditors, whether those persons are or are not officers of the company.
(3) The expenses of and incidental to an investiga tion under section 134 (in this subsection referred to as the "expenses") shall be defrayed as follows -
(a) where as a result of the investigation a pro secution is instituted by the Public Prosecutor, the expenses shall be defrayed by the revenues of Brunei;
Proceedings on report by inspectors
01 B.L.R.O. 111984
LAWS OF BRUNEI
136
(b) in any other case the expenses shall be de frayed by the company unless the Court thinks proper to direct, as the Court is hereby authorised to do, that they shall either be paid by the appli cants or in part by the company and in part by the applicants:
Provided that -
(a) if the company fails to pay the whole or any part of the sum which it is liable to pay under this subsection, the applicants shall make good the de ficiency up to the amount by which the security given by them under section 134 exceeds the amount, if any, which they have under this subsec tion been directed by the Court to pay; and
(b) any balance of the expenses not defrayed either by the company or the applicants shall be defrayed by the revenues of Brunei.
Power of company to appoint in spectors
spectors to investigate its affairs.
(2) Inspectors so appointed shall have the same pow ers and duties as inspectors appointed by the Court, except that, instead of reporting to the Court, they shall report in such manner and to such persons as the company in general meeting may direct.
(3) If any officer or agent of the company refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company, he shall be liable to be proceeded against in the same manner as if the inspec tors had been inspectors appointed by the Court.
LAWS OF BRUNEI
Companies CAP. 39 137
137. A copy of the report of any inspectors appointed under this Act, authenticated by the seal of the company whose affairs they have investigated, shall be admissible in any legal proceeding as evidence of the opinion of the in spectors in relation to any matter contained in the report.
Report of in spectors to be evidence
DIRECTORS AND MANAGERS
138. (1) Every company registered after the commence- Numberof
ment of this Act shall have at least two directors. directors
(2) One of the two directors; or where there are more than two directors, two or not less than half of the number of such directors whichever is the greater shall be nationals of Brunei.
(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
139. (1) A person shall not be capable of being appointed Restrict ons
director of a company by the articles, and shall not be ::e f mt
named as a director or proposed director of a company in a ; ; ;e
prospectus issued by or on behalf of the company, or as director
proposed director of an intended company in a prospectus issued in relation to that intended company, or in a state- ment in lieu of prospectus delivered to the Registrar by or on behalf of a company, unless, before the registration of the articles or the publication of the prospectus, or the deliv- ery of the statement in lieu of prospectus, as the case may be, he has by himself or by his agent authorised in writing-
(a) signed and delivered to the Registrar for registration a consent in writing to act as such director; and
(b) either-
(i) signed the memorandum for a number of shares not less than his qualification, if any;
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LAWS OF BRUNEI
138 CAP. 39 Companies
(ii) taken from the company and paid or agreed to pay for his qualification share, if any;
(iii) signed and delivered to the Registrar for reg istration an undertaking in writing to take from the company and pay for his qualifica tion shares, if any; or
(iv) made and delivered to the Registrar for reg- - istration a statutory declaration to the effect
that a number of shares, not less than his qual-
ification, if any, are registered in his name.
(2) Where a person has signed and delivered as aforesaid an undertaking to take and pay for his qualifica tion shares, he shall, as regards those shares, be in the same position as if he had signed the memorandum for that num ber of shares.
(3) On the application for registration of the memor andum and articles of a company the applicant shall deliver to the Registrar a list of the persons who have consented to be directors of the company, and, if this list contains the name of any person who has not so consented, the applicant shall be liable to a fine of $2,000.
(4) This section shall not apply to -
(a) a company not having a share capital; (b) a private company;
(c) a company which was a private company be
fore becoming a public company; or
(d) a prospectus issued by or on behalf of a
company after the expiration of one year from the ..- date on which the company was entitled to com-
mence business.
LAWS OF BRUNEI
Companies CAP. 39 139
(2) For the purpose of any provision in the articles requiring a director or manager to hold a specified share qualification, the bearer of a share warrant shall not be deemed to be the holder of the shares specified in the war rant.
(3) The office of director of a company shall be va cated if the director does not within 2 months from the date of his appointment, or within such shorter time as may be fixed by the articles, obtain his qualification, or if after the expiration of the said period or shorter time he ceases at any time to hold his qualification.
(4) A person vacating office under this section shall be incapable of being re-appointed director of the company until he has obtained his qualification.
(5) If after the expiration of the said period or shor ter time any unqualified person acts as a director of the company, he shall be liable to a fine of $50 for every day between the expiration of the said period or shorter time or the day on which he ceased to be qualified, as the case may be, and the last day on which it is proved that he acted as a director.
141. (1) If any person being an undischarged bankrupt acts as director of, or directly or indirectly takes part in or is concerned in the management of, any company except with the leave of the Court by which he was adjudged bankrupt, he shall be guilty of an offence: Penalty, imprisonment for one year and a fine of $5,000: Provided that a person shall not be guilty of an offence under this section by reason that
Qualification of director or manager
Provisions as to undis charged bankrupts acting as directors
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LAWS OF BRUNEI
140
he, being an undischarged bankrupt, has acted as director of, or taken part or been concerned in the management of, a company, if at the commencement of this Act he was acting as director of, or taking part or being concerned in the management of, that company and has continuously so acted, taken part, or been concerned since that date and the bankruptcy was prior to that date.
(2) The leave of the Court for the purpose of this section shall not be given unless notice of intention to apply therefor has been served on the Official Receiver and it shall be the duty of the Official Receiver, if he is of opinion that it is contrary to the public interest that any such application should be granted, to attend on the hearing of and oppose the granting of the application.
(3) In this section the expression "company" in cludes an unregistered company and a company incorpo rated outside Brunei which has an established place of business within Brunei, and the expression "Official Re ceiver" means the Official Receiver in Bankruptcy.
Validity of acts of direc tors
Register of directors
(a) in the case of an individual, his present christian name and surname, any former christian name or surname, his usual residential address, his nationality, and, if that nationality is not the nationality of origin, his nationality of origin, and his business occupation, if any, or, if he has no business occupation but holds any other direc torship or directorships, particulars of that direc torship or of some one of those directorships; and
LAWS OF BRUNEI
Companies CAP. 39 141
(b) in the case of a corporation, its corporate name and registered or principal office.
(2) The company shall, within the periods respec tively mentioned in this subsection, send to the Registrar a return in the prescribed form containing the particulars spe cified in the said register and a notification in the prescribed
- form of any change among its directors or in any of the particulars contained in the register. The period within
which the said return is to be sent shall be a period of 14 days from the appointment of the first directors of the com pany, and the period which the said notification of a change is to be sent shall be one month from the happening thereof.
(3) The register to be kept under this section shall during business hours (subject to such reasonable restric tions as the company may by its articles or in general meet ing impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member of the company without charge and of any other person on payment of one dollar, or such less sum as the company may prescribe, for each inspection.
(4) If any inspection required under this section is refused or if default is made in complying with subsection (1) or (2), the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a
- default fine.
(5) In the case of any such refusal, the Court may by
order compel an immediate inspection of the register.
(6) For the purposes of this section, a person in accordance with whose directions or instructions the direc tors of a company are accustomed to act shall be deemed to be a director and officer of the company.
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LAWS OF BRUNEI
142 CAP. 39 Companies
Limited com- 144. (1) In a limited company the liability of the directors or managers, or of the managing director, may, if so pro-
tmoirtsewd iltihabuinliltiy-
VI·de d by the memorandurn, be un1I·mi•ted.
(2) In a limited company in which the liability of a director or manager is unlimited, the directors or managers of the company, if any, and the member who proposes a person for election or appointment to the office of director or manager, shall add to that proposal a statement that the liability of the person holding that office will be unlimited, and the promoters, directors, managers, and secretary, if any, of the company, or one of them, shall, before the person accepts the office or acts therein, give him notice in writing that his liability will be unlimited.
(3) If any director, manager, or proposer makes de fault in adding such a statement, or if any promoter, direc tor, manager, or secretary makes default in giving such a notice, he shall be guilty of an offence: Penalty, a fine of
$1,000, and shall also be liable for any damage which the person so elected or appointed may sustain from the de fault, but the liability of the person elected or appointed shall not be affected by the default.
Special re solution of li mited com pany making liability of directors un limited
(2) Upon the passing of any such special resolution the provisions thereof shall be as valid as if they had been originally contained in the memorandum.
Statement as 146. (1) Subject as hereinafter provided, the directors of a
:io e:rdi ::: company shall, on a demand in that behalf made to them in
tors to be fur· writing by members of the company entitled to not less than
nished to
shareholders one-fourth of the aggregate number of votes to which all the
members of the company are together entitled, furnish to all the members of the company within a period of one month
LAWS OF BRUNEI
Companies CAP. 39 143 from the receipt of the demand a statement, certified as
correct, or with such qualifications as may be necessary, by the auditors of the company, showing as respects each of the last 3 preceding years in respect of which the accounts of the company have been made up the aggregate amount received
in that year by way of remuneration or other emoluments by
persons being directors of the company, whether as such directors or otherwise in connexion with the management of the affairs of the company, and there shall, in respect of any such director who is -
(a) a director of any other company which is in relation to the first-mentioned company a subsidi ary company; or
(b) by virtue of the nomination, whether direct or indirect, of the company a director of any other company;
be included in the said aggregate amount any remuneration or other emoluments received by him for his own use whether as a director of, or otherwise in connexion with the management of the affairs of, that other company:
Provided that-
(a) a demand for a statement under this section shall be of no effect if the company within one month after the date on which the demand is made resolve that the statement shall not be furnished; and
(b) it shall be sufficient to state the total aggre gate of all sums paid to or other emoluments re ceived by all the directors in each year without specifying the amount received by any individual.
(2) If any director fails to comply with the require ments of this section, he shall be guilty of an offence: Penal ty, a fine of $1,000.
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CAP. 39 Companies
(3) In this section the expression "emoluments" in cludes fees, percentages and other payments made or con sideration given, directly or indirectly, to a director as such, and the money value of any allowances or perquisites be longing to his office.
Disclosure by directors of interest in contracts
(2) In the case of a proposed contract the declaration required by this section to be made by a director shall be made at the meeting of the directors at which the question of entering into the contract is first taken into consideration, or, if the director was not at the date of that meeting in terested in the proposed contract, at the next meeting of the directors held after he became so interested, and, in a case where the director becomes interested in a contract after it is made, the said declaration shall be made at the first meet ing of the directors held after the director becomes so in terested.
(3) For the purposes of this section, a general notice given to the directors of a company by a director to the effect that he is a member of a specified company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with that com pany or firm shall be deemed to be a sufficient declaration of interest in relation to any contract so made.
(4) Any director who fails to comply with the provi sions of this section shall be guilty of an offence: Penalty, a fine of $2,000.
(5) Nothing in this section shall be taken to pre judice the operation of any rule of law restricting directors of a company from having any interest in contracts with the company.
J..,AWS OF BRUNEI
Companies CAP. 39 145
(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.
(3) Where a payment is to be made as aforesaid to a director of a company in connexion with the transfer to any persons, as a result of an offer made to the general body of shareholders, of all or any of the shares in the company, it shall be the duty of that director to take all reasonable steps to secure that particulars with respect to the proposed pay ment, including the amount thereof, shall be included in or sent with any notice of the offer made for their shares which is given to any shareholders.
(4) If any such director fails to take reasonable steps as aforesaid, or if any person who has been properly re quired by any such director to include the said particulars in or send them with any such notice fails so to do, he shall be guilty of an offence: Penalty, a fine of $1,000, and if the requirements of subsection (3) are not complied with in relation to any such payment as is mentioned in the said subsection, any sum received by the director on account of the payment shall be deemed to have been received by him in trust for any persons who have sold their shares as a result of the offer made.
- (5) If in connexion with any such transfer as aforesaid the price to be paid to a director of the company
Provisions as to payments received by directors for loss of office or on retire ment
B.L.R.O. 111984
LAWS OF BRUNEI
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CAP. 39 Companies
whose office is to be abolished or who is to retire from office - for any shares in the company held by him is in excess of the
price which could at the time have been obtained by other holders of the like shares or any valuable consideration is
given to any such director, the excess of the money value of the consideration, as the case may be, shall, for the pur- poses of this section, be deemed to have been a payment made to him by way of compensation for loss of office or as consideration for or in connexion with his retirement from office.
(6) Nothing in this section shall be taken to pre judice the operation of any rule of law requiring disclosure to be made with respect to any such payments as are men tioned in this section or with respect to any other like pay ments made or to be made to the directors of a company.
Provisions as to assignment of office by directors
Provisions as to liability of officers and auditors
AVOIDANCE OF PROVISIONS IN ARTICLES OR CONTRACTS RELIEVING OFFICERS FROM LIABILITY
150. Subject as hereinafter provided, any proviSIOn, whether contained in the articles of a company or in any contract with a company or otherwise, for exempting any director, manager or officer of the company, or any person (whether an officer of the company or not) employed by the company as auditor from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise
LAWS OF BRUNEI
Companies CAP. 39 147
attach to him in respect of any negligence, default, breach of
- duty or breach of trust of which he may be guilty in relation to the company shall be void: Provided that -
(a) in relation to any such provision which is in force at the date of the commencement of this Act, this section shall have effect only on the expiration of a period of 6 months from that date;
(b) nothing in this section shall operate to dep rive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force; and
(c) notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such director, mana ger, officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connexion with any application under section 321 in which relief is granted to him by the Court.
ARRANGEMENTS AND RECONSTRUCTIONS
Power to compromise with creditors and members
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(2) If a majority in number representing three fourths in value of the creditors or class of creditors, or members or class of members, as the case may be, present and voting either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the Court, be binding on all the creditors or the class of creditors, or on the mem bers or class. of members, as the case may be, and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company.
(3) An order made under subsection (2) shall have no effect until an office copy of the order has been delivered to the Registrar for registration, and a copy of every such order shall be annexed to every copy of the memorandum of the company issued after the order has been made, or, in the case of a company not having a memorandum, of every copy so issued of the instrument constituting or defining the constitution of the company.
(4) If a company makes default in complying with subsection (3), the company and every officer of the com pany who is in default shall be guilty of an offence: Penalty, a fine of $15 for each copy in respect of which default is made.
(5) In this section the expression "company" means any company liable to be wound up under this Act, and the
expression "arrangement" includes a reorganization of the .....,.
share capital of the company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both those methods.
Provisions for facilitating reconstruc tion and amalgama tion of com panies
LAWS OF BRUNEI
Companies CAP. 39 149 the purposes of or in connexion with a scheme for the recon
struction of any company or companies or the amalgama
tion of any two or more companies, and that under the
scheme the whole or any part of the undertaking or the property of any company concerned in the scheme (in this section referred to as "a transferor company") is to be trans ferred to another company (in this section referred to as "the transferee company"), the Court may, either by the order sanctioning the compromise or arrangement or by any subsequent order, make provision for all or any of the fol lowing matters -
(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;
(b) the allotting or appropriation by the trans feree company of any shares, debentures, policies, or other like interests in that company which under the compromise or arrangement are to be allotted or appropriated by that company to or for any person;
(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;
(d) the dissolution, without winding up, of any transferor company;
(e) the provision to be made for any persons, who within such time and in such manner as the Court may direct, dissent from the compromise or arrangement;
(f) such incidental, consequential and sup plemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.
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Power to ac quire shares of sharehol ders dissent ingfrom scheme or contract approved by majority
CAP. 39 Companies
(2) Where an order under this section provides for the transfer of property or liabilities, that property shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of, the transferee company, and in the case of any property, if the order so directs, freed from any charge which is by virtue of the compromise or arrangement to cease to have effect.
(3) Where an order is made under this section, every company in relation to which the order is made shall cause an office copy thereof to be delivered to the Registrar for registration within 7 days after the making of the order, and if default is made in complying with this subsection, the company and every officer of the company who is in default shall be guilty of an offence: Penalty, a default fine.
(4) In this section the expression "property" in eludes property, rights and powers of every description, and the expression "liabilities" includes duties.
(5) Notwithstanding the provisions of subsection (5) of section 151, the expression "company" in this section does not include any company other than a company within the meaning of this Act.
LAWS OF BRUNEI
Companies CAP. 39 151
unless on an application made by the dissenting shareholder within one month from the date on which the notice was given the Court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which under the scheme or contract the shares of the approving sharehol ders are to be transferred to the transferee company.
(2) Where a notice has been given by the transferee company under this section and the Court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee company shall, on the expira tion of one month from the date on which the notice has been given, or, if an application to the Court by the dissent ing shareholder is then pending, after that application has been disposed of, transmit a copy of the notice to the trans feror company and pay or transfer to the transferor com pany the amount or other consideration representing the price payable by the transferee company for the shares which by virtue of this section that company is entitled to acquire, and the transferor company shall thereupon regis ter the transferee company as the holder of those shares.
(3) Any sums received by the transferor company under this section shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by that company on trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received.
(4) In this section the expression "dissenting share holder" includes a shareholder who has not assented to the scheme or contract and any shareholder who has failed or refused to transfer his shares to the transferee company in accordance with the scheme or contract.
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LAWS OF BRUNEI
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PARTV -
WINDING UP
(i) PRELIMINARY MODES OF WINDING UP
Modesof 154. (1) The winding up of a company may be either-
winding up
(a) by the Court;
(b) voluntary; or
(c) subject to the supervision of the Court.
(2) The provisions of this Act with respect to wind ing up apply, unless the contrary appears, to the winding up of a company in any of those modes.
CONTRIBUTORIES
Liability as contributor ies of present and past members
155. (1) In the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the costs, charges, and ex penses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to the provisions of subsection (2) and the following qualifica tions-
(a) a past member shall not be liable to contri bute if he has ceased to be a member for one year or upwards before the commencement of the wind ing up;
(b) a past member shall not be liable to contri bute in respect of any debt or liability of the com pany contracted after he ceased to be a member;
LAWS OF BRUNEI
Companies CAP. 39 153
(c) a past member shall not be liable to contri bute unless it appears to the Court that the existing members are unable to satisfy the contribution re quired . to be made by them in pursuance of this Act.
(d) in the case of a company limited by shares '! no contribution shall be required from any mem ber exceeding the amount, if any, unpaid on the
shares in respect of which he is liable as a present _
or past member;
(e) in the case of a company limited by guaran tee, no contribution shall, subject to the provisions of subsection (3) be required from any member exceeding the amount undertaken to be contri buted by him to the assets of the company in the event of its being wound up;
(f) nothing in this Act shall invalidate any provi sion contained in any policy of insurance or other contract whereby the liability of individual mem bers on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;
(g) a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the pur pose of the final adjustment of the rights of the contributories among themselves.
(2) In the winding up of a limited company, any director or manager, whether past or present, whose liabil ity is, under the provisions of this Act, unlimited, shall, in
B.L.R.O. J/1984
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CAP. 39 Companies
addition to his liability (if any) to contribute as an ordinary member, be liable to make a further contribution as if he were at the commencement of the winding up a member of an unlimited company:
Provided that -
(a) a past director or manager shall not be liable to make such further contribution if he has ceased to hold office for a year or upwards before the commencement of the winding up;
(b) a past director or manager shall not be liable to make such further contribution in respect of any debt or liability of the company contracted after he ceased to hold office;
(c) subject to the articles of the company, a director or manager shall not be liable to make such further contribution unless the Court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding up.
(3) In the winding up of a company limited by guarantee which has a share capital, every member of the company shall be liable, in addition to the amount under taken to be contributed by him to the assets of the company in the event of its being wound up, to contribute to the extent of any sums unpaid on any shares held by him.
Definition of contributory
156. The term "contributory" means every person liable to contribute to the assets of a company in the event of its being wound up, and for the purposes of all proceedings for determining, and all proceedings prior to the final deter mination of, the persons who are to be deemed contributor ies, includes any person alleged to be a contributory.
LAWS OF BRUNEI
Companies CAP. 39 155
157. The liability of a contributory shall create a debt of the nature of a specialty accruing due from him at the time when his liability commenced, but payable at the times when calls are made for enforcing the liability.
158. (1) If a contributory dies either before or after he has been placed on the list of contributories, his personal repre sentatives (and his heirs or other inheritors in countries where property does not pass to personal representatives) shall be liable in due course of administration to contribute to the assets of the company in discharge of his liability and shall be contributories accordingly.
(2) Where the personal representatives are placed on the list of contributories, such heirs or inheritors need not be added, but they may be added as and when the Court thinks fit.
159. If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contribu tory, and for compelling payment thereout of the money due.
160. If a contributory becomes bankrupt, either before or after he has been placed on the list of contributories -
(a) his trustee in bankruptcy shall represent him for all the purposes of the winding up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bank rupt, or otherwise to allow to be paid out of his assets in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and
(b) there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.
Nature of liability of contributory
Contributor ies in 'ase of death of member
Default by personal rep resentatives
Contributor ies in case of bankruptcy
of member
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LAWS OF BRUNEI
156 CAP. 39
Companies
(ii) WINDING UP BY THE COURT
JURISDICTION
Jurisdiction to wind up companies registered in Brunei
161. The Court shall have jurisdiction to wind up any com
pany registered in Brunei.
CASES IN WHICH COMPANY MAY BE WOUND UP BY COURT
Circumst- 162.
ances in
which com-
pany maybe
wound up by
Court
A company may be wound up by the Court if -
(a) the company has by special resolution re solved that the company be wound up by the Court;
(b) default is made in delivering the statutory report to the Registrar or in holding the statutory meeting;
(c) the company does not commence its busi ness within a year from its incorporation, or sus pends its business for a whole year;
(d) the number of members is reduced, in the case of a private company, below two, or, in the case of any other company, below seven;
(e) the company is unable to pay its debts; or
(f) the Court is of opinion that it is just and equitable that the company should be wound up.
Definition of inability to pay debts
163. A company shall be deemed to be unable to pay its debts-
(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding
LAWS OF BRUNEI
Companies CAP. 39 157
$500 then due, has served on the company, by leaving it at the registered office of the company, a demand under his hand requiring the company to pay the sum so due, and the company has for 3 weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satis faction of the creditor;
(b) if execution or other process issued on a judgment, decree or order of any Court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(c) if it is proved to the satisfaction of the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the com pany.
PETITION FOR WINDING UP AND EFFECTS THEREOF
a company shall be by petition, presented subject to the i?o a
provisions of this section either by the company, or by any winding up
creditor or creditors (including any contingent or prospec- tive creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately: Pro- vided that-
(a) a contributory shall not be entitled to pre
sent a winding-up petition unless
(i) either the number of members is reduced, in the case of a private company, below two, or, in the case of any other company, below seven; or
B.L.R.0. 1/1984
LAWS OF BRUNEI
158 CAP. 39 Companies
(ii) the shares in respect of which he is a contribu -
tory, or some of them, either were originally
allotted to him or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commence ment of the winding up, or have devolved on him through the death of a former holder; and
(b) a winding-up petition shall not, if the ground of the petition is default in delivering the statutory report to the Registrar or in holding the statutory meeting, be presented by any person ex cept a shareholder, nor before the expiration of 14 days after the last day on which the meeting ought to have been held; and
(c) the Court shall not give a hearing to a wind ing-up petition presented by contingent or prospective creditor until such security for costs has been given as the Court thinks reaonable and until a prima facie case for winding up has been established to the satisfaction of the Court.
(2) Where a company is being wound up voluntarily or subject to supervision, a winding-up petition may be pre sented by the Official Receiver atttached to the Court as well as by any other person authorised in that behalf under the other provisions of this section, but the Court shall not make a winding-up order on the petition unless it is satisfied that the voluntary winding up or winding up subject to su pervision cannot be continued with due regard to the in terests of the creditors or contributories.
(3) Where under the provisions of this Part any per son as being the husband of a female contributory is himself a contributory, and a share has during the whole or any part of the 6 months mentioned in proviso (a) (ii) to subsection (1) been held by or registered in the name of the wife, or by or in the name of a trustee for the wife or for the husband,
LAWS OF BRUNEI
Companies CAP. 39 159
the share shall, for the purposes of this section, be deemed to have been held by and registered in the name of the husband.
165. (1) On hearing a winding-up petition the Court may dismiss it, or adjourn the hearing conditionally or uncon ditionally, or make any interim order, or any other order that it thinks fit, but the Court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
(2) Where the petition is presented on the ground of default in delivering the statutory report to the Registrar or in holding the statutory meeting, the Court may -
(a) instead of making a winding-up order, direct that the statutory report shall be delivered or that a meeting shall be held; and
(b) order the costs to be paid by any persons who, in the opinion of the Court, are responsible for the default.
(a) where any action or proceeding against the company is pending in any Court, apply to the Court in which the action or proceeding is pending for a stay of proceedings therein; and
(b) where any other action or proceeding is pending against the company, apply to the Court having jurisdiction to wind up the company to res train further proceedings in the action or proceed ing;
Powers of Court on hearing peti tion
Power to stay or restrain proceedings against com pany
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and the Court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.
Avoidanceof 167. In a winding up by the Court, any disposition of the ofproperty, property o t e company, me u mgt mgs m action, an any e;ce- transfer of shares, or alteration in the status of the members
!Dent of wind- of the company, made after the commencement of the wind-
mg up ing up, shall, unless the Court otherwise orders, be void.
Avoidance to attachments, etc.
Commence ment of wind ing up by the Court
Copy of order to be forwarded to Registrar
COMMENCEMENT OF WINDING UP
(2) In any other case, the winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding up.
CONSEQUENCES OF WINDING-UP ORDER
LAWS OF BRUNEI
Companies CAP.39 161
171. When a winding-up order has been made, or a pro visional liquidator has been appointed, no action or pro ceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose.
172. An order for winding-up a company shall operate in favour of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor and of a contributory.
OFFICIAL RECEIVER IN WINDING UP
173. For the purposes of this Act so far as it relates to the winding up of companies by the Court the term "Official Receiver" means the Official Receiver in Bankruptcy.
174. If in the case of the winding up of any company by the Court it appears to the Court desirable, with a view to secur ing the more convenient and economical conduct of the winding up, that some officer, other than the Official Re ceiver in Bankruptcy, should be the Official Receiver for the purposes of that winding up, the Court may appoint that other officer to act as Official Receiver in that winding up, and the person so appointed shall be deemed to be the Official Receiver in that winding up for all the purposes of this Act.
175. (1) Where the Court has made a winding-up order or appointed a provisional liquidator, there shall, unless the Court thinks fit to order otherwise and so orders, be made out and submitted to the Official Receiver a statement .as to the affairs of the company in the prescribed form, verified by affidavit, and showing the particulars of its assets, debts, and liabilities, the names, residences, and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given, and such furth er or other information as may be prescribed or as the Of ficial Receiver may require.
Actions stayed on winding-up order
Effect of winding-up order
Official Re ceiver in bankruptcy
to be Official Receiver for winding-up
purposes
Appointment of Official Receiver by Court in cer tain case
Statement of company's affairs to be submitted to Official Re• ceiver
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LAWS OF BRUNEI
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(2) The statement shall be submitted and verified by -
one or more of the persons who are at the relevant date the
directors and by the person who is at that date the secretary or other chief officer of the company, or by such of the persons hereinafter in this subsection mentioned as the Of
ficial Receiver, subject to the direction of the Court, may require to submit and verify the statement, that is to say, persons-
(a) who are or have been directors or officers of the company;
(b) who have taken part in the formation of the company at any time within one year before the relevant date;
(c) who are in the employment of the company, or have been in the employment of the company within the said year, and are in the opinion of the Official Receiver capable of giving the information required;
(d) who are or have been within the said year officers of or in the employment of a company, which is, or within the said year was, an officer of the company to which the statement relates.
(3) The statement shall be submitted within 28 days from the relevant date, or within such extended time as the Official Receiver or the Court may for special reasons appoint.
(4) Any person making or concurring in making the statement and affidavit required by this section shall be allowed, and shall be paid by the Official Receiver or pro visional liquidator, as the case may be, out of the assets of the company, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the Official Receiver may consider reasonable, subject to an appeal to the Court.
LAWS OF BRUNEI
Companies CAP. 39 163
(5) If any person, without reasonable excuse, makes default in complying with the requirements of this section, he shall be guilty of an offence: Penalty, a fine of $50 for every day during which the default continues.
(6) Any person stating himself in writing to be a creditor or contributory of the company shall be entitled by himself or by his agent at all reasonable times, on payment of the prescribed fee, to inspect the statement submitted in pursuance of this section, and to a copy thereof or extract therefrom.
(7) Any person untruthfully so stating himself to be a creditor or contributory shall be guilty of a contempt of Court and shall, on the application of the liquidator or of the Official Receiver, be punishable accordingly.
(8) In this section the expression the "relevant date" means in a case where a provisional liquidator is appointed, the date of his appointment, and, in a case where no such appointment is made, the date of the winding-up order.
OffiC.lal Recet.ver sha11, as soon as practl.cable af ter recet.pt of
the statement to be submitted under section 175, or, in a
case where the Court orders that no statement shall be sub- mitted, as soon as practicable after the date of the order, submit a preliminary report to the Court -
cOefifviecrialRe-
(a) as to the amount of capital issued, sub scribed, and paid up, and the estimated amount of assets and liabilities;
(b) if the company has failed, as to the causes of the failure; and
(c) whether in his opinion further inquiry is de sirable as to any matter relating to the promotion, formation or failure of the company, or the con duct of the business thereof.
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CAP. 39 Companies
(2) The Official Receiver may also, if he thinks fit, make a further report, or further reports, stating the man ner in which the company was formed and whether in his opinion any fraud has been committed by any person in its promotion or formation, or by any director or other officer of the company in relation to the company since the forma tion thereof, and any other matters which in his opinion it is desirable to bring to the notice of the Court.
(3) If the Official Receiver states in any such further report as aforesaid that in his opinion a fraud has been committed as aforesaid, the Court shall have the further powers provided in sections 207 and 208.
LIQUIDATORS
Power of Court to appoint liquidators
Appointment and powers
of liquidator
Appoint ment, style etc. of liquidators
177. For the purpose of conducting the proceedings in winding up a company and performing such duties in refer ence thereto as the Court may impose, the Court may appoint a liquidator or liquidators.
178. (1) Subject to the provisions of this section, the Court may appoint a liquidator provisionally at any time after the presentation of a winding-up petition.
(2) The appointment of a provisional liquidator may be made at any time before the making of a winding up order, and either the Official Receiver or any other fit per son may be appointed.
(3) Where a liquidator is provisionally appointed by the Court, the Court may limit and restrict his powers by the order appointing him.
179. The following provisions with respect to liquidators shall have effect on a winding-up order being made -
(a) the Official Receiver shall by virtue of his office become the provisional liquidator and shall
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r
LAWS OF BRUNEI
Companies CAP. 39 165
continue to act as such until he or another person becomes liquidator and is capable of acting as such;
(b) the Official Receiver shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the Court for appointing a liquidator in the place of the Official Receiver;
(c) the Court may make any appointment and order required to give effect to any such deter mination, and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matter aforesaid, the Court shall decide the difference and make such order thereon as the Court may think fit;
(d) in any case where a liquidator is not appointed by the Court, the Official Receiver shall be the liquidator of the company;
(e) the Official Receiver shall by virtue of his office be the liquidator during any vacancy;
(f) a liquidator shall be described, where a per son other than the Official Receiver is liquidator, by the style of the liquidator, and, where the Of ficial Receiver is liquidator, by the style of the Of ficial Receiver and liquidator, of the particular company in respect of which he is appointed, and not by his individual name.
(a) shall not be capable of acting as liquidator until he has notified his appointment to the Reg-
Provisions where person other than Official Re ceiver is appointed li qUidator
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CAP. 39 Companies
istrar and given security in the prescribed manner to the satisfaction of the Official Receiver;
(b) shall give the Official Receiver such in formation and such access to and facilities for in specting the books and documents of the company, and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.
General pro visions as to liquidators
Custody of company's property
181. (1) A liquidator appointed by the Court may resign or, on cause shown, be removed by the Court.
(2) Where a person other than the Official Receiver is appointed liquidator, he shall receive such salary or re muneration by way of percentage or otherwise as the Court may direct, and, if more such persons than one are appointed liquidators, their remuneration shall be distri buted among them in such proportions as the Court directs.
(3) A vacancy in the office of a liquidator appointed by the Court shall be filled by the Court.
(4) If more than one liquidator is appointed by the Court, the Court shall declare whether any act by this Act required or authorized to be done by the liquidator is to be done by all or any one or more of the persons appointed.
(5) Subject to the provisions of section 263, the acts of liquidator shall be valid notwithstanding any defects that may afterwards be discovered in his appointment or qual ification.
182. Where a winding-up order has been made or where a provisional liquidator has been appointed, the liquidator, .or the provisional liquidator, as the case may be, shall take into his custody, or under his control, all the property and things in action to which the company is or appears to be entitled.
LAWS OF BRUNEI
Companies CAP. 39 167
(a) to bring or defend any action or other legal proceeding in the name and on behalf of the com pany;
(b) to carry on the business of the company, so far as may be necessary for the beneficial winding up thereof;
(c) to appoint a solicitor to assist him in the performance of his duties;
(d) to pay any classes of creditors in full;
(e) to make any compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascer tained or sounding only in damages against the company, or whereby the company may be ren dered liable;
Vesting of property of company in liquidator
Powers of liquidator
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168 CAP. 39 Companies
(f) to compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in dam- ages, subsisting or supposed to subsist between the company and a contributory, or alleged contribu- tory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the wind- ing up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim, and give a complete discharge in respect thereof.
(2) The liquidator in a winding up by the Court shall have power-
(a) to sell the real and personal property and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels;
(b) to do all acts and to execute, in the name and on behalf of the company, all deeds, receipts, and other documents, and for that purpose to use, when necessary, the company's seal;
(c) to prove, rank, and claim in the bankruptcy, insolvency, or sequestration of any contributory, for any balance against his estate, and to receive dividends in the bankruptcy, insolvency, or se questration in respect of that balance, as a separate debt due from the bankrupt or insolvent, and rate ably with the other separate creditors;
(d) to draw, accept, make, and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with
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LAWS OF BRUNEI
Companies CAP. 39 169
respect to the liability of the company as if the bill or note had been drawn, accepted, made, or en dorsed by or on behalf of the company in the course of its business;
(e) to raise on the security of the assets of the company any money requisite;
(f) to take out in his official name letters of administration to any deceased contributory, and to do in his official name any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conve niently done in the name of the company, and in all such cases the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself;
(g) to appoint an agent to do any business which the liquidator is unable to do himself;
(h) to do all such other things as may be neces sary for winding up the affairs of the company and distributing its assets.
(3) The exercise by the liquidator in a winding up by the Court of the powers conferred by this section shall be subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any
- exercise or proposed exercise of any of those powers.
185. (1) Subject to the provisions of this Act, the liquida tor of a company which is being wound up by the Court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting, or by the committee of inspection, and any directions given by the
Exercise and control of liquidator's powers
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LAWS OF BRUNEI
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creditors or contributories at any general meeting shall in - case of conflict be deemed to override any directions given
by the committee of inspection.
(2) The liquidator may summon general meetings of the creditors or contributories for the purpose of ascertain ing their wishes, and it shall be his duty to summon meetings
at such times as the creditors or contributories, by resolu- - tion, either at the meeting appointing the liquidator or
otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories as the case may be.
(3) The liquidator may apply to the Court in manner prescribed for directions in relation to any particular matter arising under the winding up.
(4) Subject to the provisions of this Act, the liquida tor shall use his own discretion in the management of the estate and its distribution among the creditors.
(5) If any person is aggrieved by any act or decision of the liquidator, that person may apply to the Court, and the Court may confirm, reverse, or modify the act or deci sion complained of, and make such order in the premises as it thinks just.
Books to be ket>t by li qutdator
Payments of liquidator into bank or tbe Treasury
LAWS OF BRUNEI
Companies CAP. 39 171
Liquidation Account at the bank where such account is kept, and the Permanent Secretary shall furnish him with a certificate of receipt of the money so paid, and when the Official Receiver is the liquidator of such company he shall pay all monies received by him in such capacity into the Companies Liquidation Account: Provided that, if the com mittee of inspection satisfy the Official Receiver that for the purpose of carrying on the business of the company or of obtaining advances, or for any other reason, it is for the advantage of the creditors or contributories that the liquida tor should have an account with any other bank, the Official Receiver shall, on the application of the committee of in spection, authorise the liquidator to make his payments into and out of such other bank as the committee may select, and thereupon those payments shall be made in the prescribed manner.
(2) If any such liquidator at any time retains for more than 10 days a sum exceeding $500, or such other amount as the Court in any particular case may authorise him to retain, then, unless he explains the retention to the satisfaction of the Court, he shall pay interest on the amount so retained in excess at the rate of 20 per cent per annum, and shall be liable to disallowance of all or such part of his remuneration as the Court may think just, and to be re moved from his office by the Court, and shall be liable to pay any expenses occasioned by reason of his default.
(3) A liquidator of a company which is being wound up by the Court shall not pay any sums received by him as liquidator into his private banking account.
188. (1) Every liquidator (other than the Official Receiv er) of a company which is being wound up by the Court shall, at such times as may be prescribed but not less than twice in each year during his tenure of office, send to the Official Receiver, an account of his receipts and payments as liquidator and where the Official Receiver is liquidator he shall cause such account to be prepared.
Audit of ii quidator's accounts
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LAWS OF BRUNEI
172
Control of Official Re ceiver over li quidators
CAP. 39 Companies
(2) The account shall be in a prescribed form, shall -
be made in duplicate, and shall be verified by a statutory
declaration in the prescribed form.
(3) The Official Receiver shall cause the account to be audited and for the purpose of the audit the liquidator shall furnish the Official Receiver with such vouchers and information as the Official Receiver may require, and the Official Receiver may at any time require the production of and inspect any books or accounts kept by the liquidator.
(4) When the account has been audited, one copy thereof shall be filed and kept by the Official Receiver, and the other copy shall be delivered to the Court for filing, and each copy shall be open to the inspection of any creditor, or of any person interested.
(5) The Official Receiver shall cause the account when audited or a summary thereof to be printed, and shall send a printed copy of the account or summary by post to every creditor and contributory.
189. (1) The Official Receiver shall take cognizance of the conduct of liquidators of companies which are being wound up by the Court, and, if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules, or otherwise with respect to the performance of his duties, or if any complaint is made to the Official Receiver by any creditor or contributory in regard thereto, the Official Receiver shall inquire into the matter, and take such action thereon as he may think expe dient.
(2) The Official Receiver may at any time require any liquidator of a company which is being wound up by the Court to answer any inquiry in relation to any winding up in which he is engaged, and may, if he think fit, apply to the Court to examine him or any other person on oath concern ing the winding up.
LAWS OF BRUNEI
Companies CAP. 39 173
(3) The Official Receiver may also direct a local in vestigation to be m3de of the books and vouchers of the liquidator.
190. (1) When the liquidator of a company which is being wound up by the Court has realised all the property of the company, or so much thereof as can, in his opinion, be realised without needlessly protracting the liquidation, and has distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories, or has resigned, or has been removed from his office, the Court shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the Court, shall take into consideration the report, and any objection which may be urged by any creditor or contribu tory, or person interested against the release of the liquida tor, and shall either grant or withhold the release accord ingly.
(2) Where the release of a liquidator is withheld, the Court may, on the application of any creditor or contribu tory, or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty.
(3) An order of the Court releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company, or otherwise in relation to his con duct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.
(4) Where the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office.
Release of li·
quidators
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LAWS OF BRUNEI
174
COMMITTEES OF INSPECTION
Meetingsof 191. (1) When a winding-up order has been made by the
contributor- ourt, It s a e t e usmess o t e separate meetings of
: ther creditors and contributories summoned for the purpose of
ommi tee of determining whether or not an application should be made
mshsapllectton
to the Court for appom.
tm.
g a 11' qm'dator m.
place of the Of-
appomted ficial Receiver, to determine further whether or not an ap
plication is to be made to the Court for the appointment of a committee of inspection to act with the liquidator and who are to be members of the committee if appointed.
(2) The Court may make any appointment and order required to give effect to any such determination, and if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matters aforesaid the Court shall decide the difference and make such order thereon as the Court may think fit.
Constitution and proceed· inj!S of com· m1ttee of in· spection
(2) The committee shall meet at such times as they from time to time appoint, and, failing such appointment, at least once a month, and the liquidator or any member of the committee may also call a meeting of the committee as and when he thinks necessary.
(3) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present.
(4) A member of the committee may resign by notice in writing signed by him and delivered to the liquida tor.
LAWS OF BRUNEI
Companies CAP. 39 175 (5) If a member of the committee becomes bank
rupt, or compounds or arranges with his creditors, or is
absent from 5 consecutive meetings of the committee with out the leave of those members who together with himself represent the creditors or contributories, as the case may be, his office shall thereupon become vacant.
(6) A member of the committee may be removed by an ordinary resolution at a meeting of creditors, if he repre sents creditors or of contributories, if he represents contri butories, of which 7 days' notice has been giving, stating the object of the meeting.
(7) On a vacancy occurring in the committee the li quidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, to fill the vacan cy, and the meeting may, by resolution, re-appoint the same or appoint another creditor or contributory to fill the va cancy.
(8) The continuing members of the committee, if not less than two, may act notwithstanding any vacancy in the committee.
193. (1) Where in the case of a winding up there is no committee of inspection, the Court may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Act authorised or required to be done or given by the committee.
GENERAL POWERS OF COURT IN CASE OF WINDING UP BY COURT
Powers of Court where no committee of inspection
Power to stay winding up
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LAWS OF BRUNEI
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in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Court thinks fit.
(2) On any application under this section the Court may, before making an order, require the Official Receiver to furnish to the Court a report with respect to any facts or matters which are in his opinion relevant to the application.
Settlementof 195. (1) As soon as may be after making a winding-up
g d order, the Court shall settle a list of contributories, with
application of power to rectify the register of members in all cases where
assets
rectification is required in pursuance of this Act, and shall
cause the assets of the company to be collected, and applied in discharge of its liabilities: Provided that, where it appears to the Court that it will not be necessary to make calls on or adjust the rights of contributories, the Court may dispense with the settlement of a list of contributories.
(2) In settling the list of contributories, the Court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
Delivery of property of li quidator
196. The Court may, at any time after making a winding up order, require any contributory for the time being on the list of contributories, and any trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the Court directs, to the liquidator any money, property, or books and papers in his hands to which the company IS prima facie entitled.
Payment of debts due by contributory to company and extent to which set-off allowed
LAWS OF BRUNEI
Companies CAP. 39 177
exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act -
(2) The Court in making such an order may
(a) in the case of an unlimited company, allow to the contributory by way of set-off any money due to him or to the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit; and
(b) in the case of a limited company, make to any director or manager whose liability is unli mited or to his estate the like allowance.
(3) In the case of any company, whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.
(2) In making a call the Court may take into consid eration the probability that some of the contributories may partly or wholly fail to pay the call.
Power of Court to make calls
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CAP. 39 Companies
Payment into bank of moneys due to company
Order on contributory conclusive evidence
Appointment of special manager
199. (1) The Court may order any contributory, purchas er or other person from whom money is due to the company to pay the amount due into such bank as the CouPt may direct to the account of the liquidator instead of to the liquidator, and any such order may enforced in the same manner as if it had directed payment to the liquidator.
(2) All moneys and securities paid or delivered into such bank in the event of a winding up by the Court shall be subject in all respects to the orders of the Court.
200. (1) An order made by the Court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.
(2) All other pertinent matters stated in the order shall be taken to be truly stated as against all persons and in all proceedings.
201. (1) Where in proceedings the Official Receiver be comes the liquidator of a company, whether provisionally or otherwise, he may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager of the estate or business of the company other than himself, apply to the Court, and the Court may on such application, appoint a special manager of the said estate or business to act during such time as the Court may direct, with such powers, including any of the powers of a receiver or manager, as may be entrusted to him by the Court.
(2) The special manager shall give such security and account in such manner as the Court may direct.
(3) The special manager shall receive such remun
eration as may be fixed by the Court.
LAWS OF BRUNEI
Companies CAP. 39 179
202. The Court may fix a time or times within which credi tors are to prove their debt or claims, or to be excluded from the benefit of any distribution made before those debts are proved.
203. The Court shall adjust the rights of the contributories among themselves, and distribute any surplus among the
- persons entitled thereto.
Power to ex clude credi tors not pro ving in time
Adjustment of rights of contribu tories
204. The Court may, at any time after making a winding- Inspection of
up order, make such order for inspection of the books and it :Xte
papers of the company by creditors and contributories as the f :tributor
Court thinks just, and any books and papers in the posses- sion of the company may be inspected by creditors or contri- butories accordingly, but not further or otherwise.
205. The Court may, in the event of the assets being insuf ficient to satisfy the liabilities, make an order as to the pay ment out of the assets of the costs, charges, and expenses incurred in the winding up in such order of priority as the Court thinks just.
206. (1) The Court may, at any time after the appoint ment of a provisional liquidator or the making of a winding up order, summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the promotion, formation, trade, dealings, affairs, or property of the company.
(2) The Court may examine him on oath concerning the matters aforesaid, either by word of mouth or on written interrogatories, and may reduce his answers to writing and require him to sign them.
(3) The Court may require him to produce any books and papers in his custody or power relating to the company, but, where he claims any lien on books or papers
Power to order costs of winding up to be paid out of assets
Power to summon per sons sus pected of having prop erty of com pany
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CAP. 39 Companies
produced by him, the production shall be without prejudice to that lien, and the Court shall have jurisdiction in the winding up to determine all questions relating to that lien.
(4) If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the Court at the time appointed, not having a lawful impedi ment (made known to the Court at the time of its sitting, and allowed by it), the Court may cause him to be apprehended and brought before the Court for examina tion.
Power to order public examination of promoters, directors &c.
207. (1) Where an order has been made for winding up a company by the Court, and the Official Receiver has made a further report under this Act stating that in his opinion a fraud has been committed by any person in the promotion or formation of the company, or by any director or other officer of the company in relation to the company since its formation, the Court may, after consideration of the report, direct that that person, director or officer shall attend before the Court on a day appointed by the Court for that purpose, and be publicly examined as to the promotion or formation or the conduct of the business of the company, or as to his conduct and dealings as director or officer thereof.
(2) The Official Receiver shall take part in the ex amination, and for that purpose may, if specially authorised by the Court in that behalf, employ an advocate.
(3) The liquidator, where the Official Receiver is not the liquidator, and any creditor or contributory, may also take part in the examination either personally or by an advocate.
(4) The Court may put such questions to the person examined as the Court thinks fit.
LAWS OF BRUNEI
Companies CAP. 39 181 (5) The person examined shall be examined on oath,
and shall answer all such questions as the Court may put or
allow to be put to him.
(6) A person ordered to be examined under this sec tion shall at his own cost, before his examination be fur nished with a copy of the Official Receiver's report, and may at his own cost employ an advocate, who shall be at liberty to put to him such questions as the Court may deem just for the purpose of enabling him to explain or qualify any answers given by him: Provided that, if any such person applies to the Court to be exculpated from any charges made or suggested against him, it shall be the duty of the Official Receiver to appear on the hearing of the application and call the attention of the Court to any matters which appear to the Official Receiver to be relevant, and if the Court, after hearing any evidence given or witnesses called by the Official Receiver, grants the application, the Court may allow the applicant such costs as in its discretion it may think fit.
(7) Notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him, and shall be open to the inspection of any creditor or contributory at all reasonable times.
(8) The Court may, if it thinks fit, adjourn the ex
amination from time to time.
Power to res train fraudu lent persons from manag ing com panies
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Power to arrest absconding
contributory
CAP. 39 Companies
in any way, whether directly or indirectly, be concerned in -
or take part in the management of a company for such
period, not exceeding 5 years, from the date of the report as
may be specified in the order.
(2) The Official Receiver shall, where he intends to make an application under subsection (1), give not less than
10 days' notice of his intention to the person charged with
the fraud, and on the hearing of the application that person may appear and himself give evidence or call witnesses.
(3) It shall be the duty of the Official Receiver to appear on the hearing of an application by him for an order under this section and on an application for leave under this section and to call the attention of the Court to any matters which appear to him to be relevant, and on any such ap plication the Official Receiver may himself give evidence or call witnesses.
(4) If any person acts in contravention of an order made under this section, he shall, in respect of each offence be guilty of an offence: Penalty, imprisonment for 2 years, and a fine of $5,000.
(5) The provisions of this section shall have effect notwithstanding that the person concerned may be criminal ly liable in respect of the matters on the ground of which the order is to be made.
209. The Court, at any time either before or after making a winding-up order, on proof of probable cause for believing that a contributory is about to quit Brunei, or otherwise to abscond, or to remove or conceal any of his property for the purpose of evading payment of calls, or of avoiding ex amination respecting the affairs of the company, may cause the contributory to be arrested, and his books and papers and moveable personal property to be seized, and him and them to be safely kept until such time as the Court may order.
LAWS OF BRUNEI
Companies CAP. 39 183
Powers of Court cumulative
or requiring all or any of the powers and duties conferred
clieqrutaidinatpoorwof·
and imposed on the Court by this Act in respect of the ers of Court
following matters
(a) the holding and conducting of meetings to ascertain the wishes of creditors and contribu tories;
(b) the settling of lists of contributories and the rectifying of the register of members where re quired, and the collecting and applying of the assets;
(c) the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;
(d) the making the calls;
(e) the fixing of a time within which debts and claims must be proved;
to be exercised or performed by the liquidator as an officer of the Court, and subject to the control of the Court: Pro vided that the liquidator shall not, without the special leave of the Court, rectify the register of members, and shall not make any call without either the special leave of the Court or the sanction of the committee of inspection.
Dissolution ofeompany
B.L.R.O. 1!1984
LAWS OF BRUNEI
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CAP. 39 Companies
(2) The order shall within 14 days from the date thereof be reported by the liquidator to the Registrar of Companies who shall make in his books a minute of the dissolution of the company.
(3) If the liquidator makes default in complying with the requirements of this section, he shall be guilty of an offence: Penalty, a fine of $25 for every day during which he is in default.
(iii) VOLUNTARY WINDING UP RESOLUTIONS FOR, AND COMMENCEMENT OF,
VOLUNTARY WINDING UP
Circumst ances in which com pany maybe
wound up
voluntanly
213. (1) A company may be wound up voluntarily-
(a) when the period, if any, for the direction of the company by the articles expires, or the event, if any, occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a re solution requiring the company to be wound up voluntarily;
(b) if the company resolves by special resolution that the company be wound up voluntarily;
(c) if the company resolves by extraordinary re solution to the effect that it cannot by reason of its liabilities continue its business, and that it is advis able to wind up.
(2) In this Act the expression a resolution for volun- - tarily winding up means a resolution passed under any of the
provisions of subsection (1).
LAWS OF BRUNEI
Companies CAP. 39 185
214. (1) When a company has passed a resolution for voluntary winding up, it shall, within 14 days after the pas sing of the resolution, give notice of the resolution by adver tisement in the Gazette.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine, and for the purposes
- of this subsection the liquidator of the company shall be deemed to be an officer of the company.
CONSEQUENCES OF VOLUNTARY WINDING UP
DECLARATION OF SOLVENCY
Notice of re
solution to wind up voluntarily
Commence ment of voluntary winding up
Effect of voluntary winding up on business and status of company
Avoidance of transfers, etc., after commence ment of voluntary winding up
voluntan"1y, the d"rectors of t he company or, m·
the case of a scolalvreanticoynionf
company having more than two directors, the majority of case, ofprodp-
to wm
the directors may, at a meeting of the directors held before up yolun-
the date on which the notices of the meeting at which the tanty
B.L.R.O. 111984
LAWS OF BRUNEI
186
resolution for the winding up of the company is to be prop osed are sent out, make a statutory declaration to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within a period, not exceeding 12 months, from the com mencement of the winding up.
(2) A declaration made as aforesaid shall have no effect for the purpose of this Act unless it is delivered to the Registrar for registration before the date mentioned in sub section (1).
(3) A winding up in the case of which a declaration has been made and delivered in accordance with this section is in this Act referred to as a members' voluntary winding up, and a winding up in the case of which a declaration has not been made and delivered as aforesaid is in this Act referred to as a creditors' voluntary winding up.
PROVISIONS APPLICABLE TO A MEMBERS' VOLUNTARY WINDING UP
Provisions applicable to members' winding up
Power of company to appoint and fix remunera tion of liquidators
223 and 224 shall apply in relation to a members' voluntary winding up.
(2) On the appointment of a liquidator all the pow-
ers of the directors shall cease, except so far as the company - in general meeting, or the liquidator, sanctions the con-
tinuance thereof.
LAWS OF BRUNEI
Companies CAP. 39 187
221. (1) If a vacancy occurs by death, resignation, or otherwise in the office of liquidator appointed by the com pany, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.
(2) For that purpose a general meeting may be con
vened by any contributory or, if there were more liquidators
.than one, by the continuing liquidators.
, (3) The meeting shall be held in manner provided by
\ this Act or by the articles, or in such manner as may, on
'',application by any contributory or by the continuing liquida
tors, be determined by the Court.
222. (1) Where a company is proposed to be, or ts m course of being, wound up altogether voluntarily, and the whole or part of its business or property is proposed to ·be transferred or sold to another company, whether a company within the meaning of this Act or not (in this section called the "transferee company") the liquidator of the first mentioned company (in this section called the "transferor company") may, with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive in compensation or part compensation for the transfer or sale, shares, policies, or other like in terests in the transferee company, for distribution among the members of the transferor company, or may enter into any other arrangement whereby the members of the trans feror company may, in lieu of receiving cash, shares, poli cies, or other like interests, or in addition thereto, partici pate in the profits of or receive any other benefit from the transferee company.
(2) Any sale or arrangement in pursuance of this section shall be binding on the members of the transferor company.
Power to fill vacancy in office of liquidators
Power of liquidator to accept
shares, etc. as
consideration
for sale of
property of
company
B.L.R.O. 111984
LAWS OF BRUNEI
188 CAP. 39 Companies
(3) If any members of the transferor company who did not vote in favour of the special resolution expresses his dissent therefrom in writing addressed to the liquidator, and left at the registered office of the company within 7 days after the passing of the resolution, he may require the li quidator either to abstain from carrying the resolution into effect, or to purchase his interest at a price to be determined by agreement or by arbitration in manner provided by this section.
(4) If the liquidator elects to purchase the member's interest, the purchase money must be paid before the com pany is dissolved, and be raised by the liquidator in such manner as may be determined by special resolution.
(5) A special resolution shall not be invalid for the purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators, but, if an order is made within a year for winding up the company by or subject to the super vision of the Court, the special resolution shall not be valid unless sanctioned by the Court.
(6) For the purposes of an arbitration under this sec tion, the provisions of the Companies Clauses Consolida tion Act 1845, with respect to the settlement of disputes by arbitration, shall be incorporated with this Act, and in the construction of those provisions and the company shall mean the transferor company, this Act shall be deemed to be the special Act, and the company shall mean the trans feror company, and any appointment by the said incorpo rated provisions directed to be made under the hand of the secretary, or any two of the directors, may be made under the hand of the liquidator, or, if there is more than one liquidator, then of any two or more of the liquidators, and all powers given by the said Act to the Board of Trade shall be exercised by His Majesty.
LAWS OF BRUNEI
Companies CAP. 39 189
223. (1) In the event of the winding up continuing for more than one year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding up, and of each succeeding year, or as soon thereafter as may be convenient, and shall lay before. the meeting an account of his acts and dealings and of the conduct of the winding up during the preceding year.
Duty of liqmdator to call general meeting at end of each year
(2) If the liquidator fails to comply with this section, he shall be guilty of an offence: Penalty, a fine of $500.
224. (1) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been con ducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the com pany for the purpose of laying before it the account, and giving any explanation thereof.
(2) The meeting shall be called by advertisement in the Gazette, specifying the time, place, and object thereof, and published one month at least before the meeting.
(3) Within 3 weeks after the meeting, the liquidator shall send to the Registrar a copy of the account, and shall make a return to him of the holding of the meeting and of its date, and if the copy is not sent or the return is not made in accordance with this subsection the liquidator shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues: Provided that, if a quorum is not present at the meeting, the liquidator shall, in lieu of the return hereinbefore mentioned, make a return that the meeting was duly summoned and that no quorum was pre sent thereat, and upon such a return being made the provi sions of the subsection as to the making of the return shall be deemed to have been complied with.
Final meeting and dissolu tion
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CAP. 39 Companies
(4) The Registrar on receiving the account and either of the returns hereinbefore mentioned shall forthwith register them, and on the expiration of 3 months from the registration of the return the company shall be deemed to be dissolved: Provided that the Court may, on the application of the liquidator or of any other person who appears to the Court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the Court thinks fit.
(5) It shall be the duty of the person on whose ap plication an order of the Court under this section is made, within 7 days after the making of the order, to deliver to the Registrar an office copy of the order for registration, and if that person fails so to do he shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues.
PROVISIONS APPLICABLE TO A CREDITORS VOLUNTARY WINDING UP
Provisions applicable to creditors' winding up
Meeting of creditors
225. The provisions contained in sections 226, 227, 228,
229, 230, 231, 232 and 233 shall apply in relation to a credi
tors' voluntary winding up.
226. (1) The company shall cause a meeting of the credi tors of the company to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the resolution for voluntary winding up is to be proposed, and shall cause the notices of the said meet ing of creditors to be sent by post to the creditors simul taneously with the sending of the notices of the said meeting of the company.
(2) The company shall cause notice of the meeting of the creditors to be advertised once in the Gazette and once at least in two local newspapers circulating in the district where the registered office or principal place of business of the company is situate.
LAWS OF BRUNEI
Companies CAP. 39 191 (3) The directors of the company shall-
(a) cause a full statement of the position of the
company's affairs together with a list of the credi tors of the company and the estimated amount of their claim to be laid before the meeting of credi tors to be held as aforesaid; and
(b) appoint one of their number to preside at the said meeting.
(4) It shall be the duty of the director appointed to preside at the meeting of creditors to attend the meeting and preside thereat.
(5) If the meeting of the company at which the re solution for voluntary winding up is to be proposed is ad journed and the resolution is passed at an adjourned meet ing, any resolution passed at the meeting of the creditors held in pursuance of subsection (1) shall have effect as if it had been passed immediately after the passing of the resolu tion for winding up the company.
(6) If default is made -
(a) by the company in complying with subsec
tions (1) and (2);
(b) by the directors of the company m com
plying with subsection (3);
(c) by any director of the company in complying with subsection (4),
the company, directors or director, as the case may be, shall be shall be guilty of an offence: Penalty, a fine of $1,000, and, in the case of default by the company, every officer of the company who is in default shall be liable to the like penalty.
B.L.R.0.111984
LAWS OF BRUNEI
192 CAP. 39 Companies
Appointment of hquidator
227. The creditors and the company at their respective meetings mentioned in section 226 may nominate a person to be liquidator for the purpose of winding up the affairs and distributing the assets of the company, and if the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator, and if no person is nominated by the creditors the person, if any, nominated by the company shall be liquidator: Provided that in the case of different persons being nominated any director, member, or creditor of the company may, within 7 days after the date on which the nomination was made by the creditors, apply to the Court for an order either direct ing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors, or appointing some other per son to be liquidator instead of the person appointed by the creditors.
Appointment 228. (1) The creditors at the meeting to be held in pur
of cinosmpemcittitoene
suance of secti·on 226 or at any subsequent meetm·
g, may, 1"f
they think fit, appoint a committee of inspection consisting
of not more than 5 persons, and if such a committee is appointed the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time subsequently in general meeting, appoint such number of persons as they think fit to act as members of the commit tee not exceeding 5 in number: Provided that the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection, and, if the creditors so resolve, the persons mentioned in the resolution shall not, unless the Court otherwise directs, be qualified to act as members of the committee, and on any application to the Court under this provision the Court may, if it thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution.
(2) Subject to the provisions of this section and to general rules, the provisions of section 192 (except subsec-
LAWS OF BRUNEI
Companies CAP. 39 193 tion (1)) shall apply with respect to a committee of inspec
tion appointed under this section as they apply with respect
to a committee of inspection appointed in a winding up by the Court.
229. (1) The committee of inspection, or if there is no such committee, the creditors, may fix the remuneration to be paid to the liquidator or liquidators.
(2) On the appointment of a liquidator, all the pow ers of the directors shall cease, except so far as the commit tee of inspection, or if there is no such committee, the credi tors, sanction the continuance thereof.
230. If a vacancy occurs, by death, resignation or other wise, in the office of a liquidator, other than a liquidator appointed by, or by the direction of, the Court, the creditors may fill the vacancy.
231. The provisions of section 222 shall apply in the case of a creditors' voluntary winding up as in the case of a mem bers' voluntary winding up, with the modification that the powers of the liquidator under the said section shall not be exercised except with the sanction either of the Court or of the committee of inspection.
232. (1) In the event of the winding up continuing for more than one year, the liquidator shall summon a general meeting of the company and a meeting of creditors at the end of the first year from the commencement of the winding up, and of each succeeding year, or as soon thereafter as may be convenient, and shall lay before the meetings an account of his acts and dealings and of the conduct of the winding up during the preceding year.
(2) If the liquidator fails to comply with this section, he shall be liable to a fine of $500. ·
Fixing of liquidators' remuneration and cesser of directors' powers
Power to fill vacancy in office of li quidator
Application
of section 222
to a creditor's
voluntary
winding up
Duty of li quidator to call meetings of company and of credi tors at end of each year
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LAWS OF BRUNEI
194
Final meeting and dissolu tion
CAP. 39 Companies
233. (1) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been con ducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the com pany and a meeting of the creditors, for the purpose of laying the account before the meetings, and giving any ex planation thereof.
(2) Each such meeting shall be called by advertise ment in the Gazette specifying the time, place, and object thereof, and published one month at least before the meet mg.
(3) Within 3 weeks after the date of the meetings, or, if the meetings are not held on the same date, after the date of the later meeting, the liquidator shall send to the Registrar a copy of the account, and shall make a return to him of the holding of the meetings and of their dates, and if the copy is not sent or the return is not made in accordance with this subsection the liquidator shall be guilty of an off ence: Penalty, a fine of $50 for every day during which the default continues: Provided that, if a quorum is not present at either such meeting, the liquidator shall in lieu of the return hereinbefore mentioned, make a return that the meeting was duly summoned and that no quorum was pre sent thereat, and upon such a return being made the provi sions of this subsection as to the making of the return shall, in respect of that meeting, be deemed to have been com plied with.
(4) The Registrar on receiving the account and in respect of each such meeting either of the returns hereinbe fore mentioned shall forthwith register them, and on the expiration of 3 months from the registration thereof the company shall be deemed to be dissolved: Provided that the Court may, on the application of the liquidator or of any other person who appears to the Court to be interested, make an order deferring the date at which the dissolution of
LAWS OF BRUNEI
Companies CAP. 39 195 the company is to take effect for such time as the Court
thinks fit.
(5) It shall be the duty of the person on whose ap plication an order of the Court under this section is made, within 7 days after the making of the order, to deliver to the Registrar an office copy of the orders for registration, and if that person fails so to do he shall be guilty of an offence: Penalty, a fine of $25 for every day during which the defalJlt continues.
PROVISIONS APPLICABLE 'I'O EVERY VOLUNTARY WINDING UP
234. The provisions contained in sections 235, 236, 237
238, 239, 240, 241 and 242 shall apply to every voluntary winding up whether a members' or a creditors' winding up.
235. Subject to the provisions of this Act as to preferential payments, the property of a company shall, on its winding up, be applied in satisfaction of its liabilities pari passu, and, subject to such application, shall, unless the articles other wise provide, be distributed among the members according to their rights and interests in the company.
236. (1) The liquidator may-
(a) in the case of a members' voluntary winding up, with the sanction of an extraordinary resolu tion of the company, and, in the case of a creditors' voluntary winding up, with the sanction of either the Court or the committee of inspection, exercise any of the powers given by paragraphs (d), (e) and (f) of subsection (1) of section 184 to a liquidator in a winding up by the Court;
(b) without sanction exercise any of the other powers by this Act given to the liquidator in a winding up by the Court;
Provisions applicable to every volun tary winding up
Distribution of property of company
Powers and duties of liquidator in voluntary winding up
B.L.R.O. 111984
LAWS OF BRUNEI
196
CAP. 39 Companies
(c) exercise the power of the Court under the Act of settling a list of contributories, and the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories;
(d) exercise the power of the Court of making calls;
(e) summon general meetings of the company for the purpose of obtaining the sanction of the company by special or extraordinary resolution or for any other purpose he may think fit.
(2) The liquidator shall pay the debts of the com pany and shall adjust the rights of the contributories among themselves.
(3) When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as may be determined at the time of their appointment, or, in default of such determination, by any number not less than two.
Court mav appoint and remove liquidator in voluntary winding up
Notice by liquidator of his appoint ment
237. (1) If from any cause whatever there is no liquidator acting, the Court may appoint a liquidator.
(2) The Court may, on cause shown, remove a liquidator and appoint another liquidator.
238. (1) The liquidator shall, within 5 weeks after his appointment, deliver to the Registrar for registration a notice of his appointment in the form prescribed.
(2) If the liquidator fails to comply with the require ments of this section he shall be guilty of an offence: Penal ty, a fine of $25 for every day during which the default continues.
LAWS OF BRUNEI
Companies CAP. 39 197
(2) Any creditor or contributory may, within 3 weeks from the completion of the arrangement, appeal to the Court against it, and the Court may thereupon, as it thinks just, amend, vary, or confirm the arrangement.
(2) The Court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the ap plication on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.
Arrange ment, when binding on creditors
Power to
apply to
Court to have questions de termined or powers exer cised
Costs of voluntary winding up
of any creditor or contributory to have it wound up by the \ re
Court, but in the case of an application by a contributory, f ;tnbutor
the Court must be satisfied that the rights of the contributor- ies will be prejudiced by a voluntary winding up.
B.L.R.O.lll984
LAWS OF BRUNEI
198
CAP. 39 Companies
(iv) WINDING UP SUBJECT TO SUPERVISION OF COURT
Power to order wind ing up subject to supervi sion
Effect of peti tion for wind ing up subject to supervi sion
243. When a company has passed a resolution for volun tary winding up, the Court may make an order that the voluntary winding up shall continue but subject to such su pervision of the Court, and with such liberty for creditors, contributories, or others to apply to the Court, and general ly on such terms and conditions, as the Court thinks just.
244. A petition for the continuance of voluntary winding up subject to the supervision of the Court shall, for the purpose of giving jurisdiction to the Court over actions, be deemed to be a petition for winding up by the Court.
Afsplic_ation 245. A winding up subject to the supervision of the Court
68 dor 9 shall, for the purposes of sections 168 and 169, be deemed to
to v.:inding up be a winding up by the Court.
subJeCt to su-
pervision
Power of Court to appoint or re move liquida tors
Effect of supervision order
(2) A liquidator appointed by the Court under this section shall have the same powers, be subject to the same obligations, and in all respects stand in the same position, as if he had been duly appointed in accordance with the provi sions of this Act with respect to the appointment of liquida tors in a voluntary winding up.
(3) The Court may remove any liquidator so appointed by the Court or any liquidator continued under the supervision order and fill any vacancy occasioned by the removal, or by death or resignation.
247. (1) Where an order is made for a winding up subject to supervision, the liquidator may, subject to any restric tions imposed by the Court, exercise all his powers, without
LAWS OF BRUNEI
Companies CAP. 39 199
the sanction or intervention of the Court, in the same man ner as if the company were being wound up altogether voluntarily: Provided that the powers specified in para graphs (d), (e) and (f) of subsection (1) df section 184 shall not be exercised by the liquidator except with the sanction of the Court or, in a case where before the order the wind ing up was a creditors' voluntary winding up, with the sanc tion of either the Court or the committee of inspection.
(2) A winding up subject to the supervision of the Court is not a winding up by the Court for the purpose of the provisions of this Act which are set out in the Seventh Schedule, but, subject as aforesaid, an order for a winding up subject to supervision shall for all purposes be deemed to be an order for winding up by the Court: Provided that where the order for winding up subject to supervision was made in relation to a creditors' voluntary winding up in which a committee of inspection had been appointed, the order shall be deemed to be an order for winding up by the Court for the purpose of section 192 (except subsection (1) thereof), except in so far as the operation of that section is excluded in a voluntary winding up by general rules.
(v) PROVISIONS APPLICABLE TO EVERY MODE OF WINDING UP
PROOF AND RANKING OF CLAIMS
248. In every winding up (subject in the case of insolvent companies to the application in accordance with the provi sions of this Act of the law of bankruptcy) all debts payable on a contingency, and all claims against the company, pre sent or future, certain or contingent, ascertained or sound ing only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.
Seventh
Schedule
Debts of all descriptions to be proved
Rl B.L.R.O. 111984
LAWS OF BRUNEI
200
Application of bankrupt cy rules in winding up of insolvent companies
Preferential payments
Cap. 57
(a) the following rates and taxes
(i) all rates due to any Municipal Board consti
tuted under the Municipal Boards Act.
(ii) income tax and other tax assessed on the com pany up to the 31st of December next before that date and not exceeding in the whole one year's assessment;
(b) all wages, or salary of any clerk, servant, labourer or workman not exceeding $1,000 for each whether payable for time or piece work or whether or not payable wholly or in part by way of commission in respect of services rendered to the company during the period of 5 months next be fore the relevant date or the date of the termina tion of his service if the latter occurs within 12 months of and precedes the relevant date:
LAWS OF BRUNEI
Companies CAP. 39 201
Provided that, without prejudice to the condi- tions and restrictions imposed upon contracts and agreements to labour by the Labour Act, where cap. 9J any clerk, servant, labourer or workman has en-
tered into a contract for the payment of his wages or any part thereof in a lump sum at the end of the year of hiring, the priority under this section shall extend to the whole of such sum, or a part thereof as the Court may decide to be due under the con- tract, proportionate to the time of service up to the relevant date.
(2) Where any payment on account of wages or sal ary has been made to any clerk, servant, workman or labourer in the employment of a company out of money advanced by some person for that purpose, that person shall in a winding up have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which that clerk, servant, workman or labourer would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.
(3) The foregoing debts shall
(a) rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal prop
- ortions; and
(b) in the case of a company registered in
Brunei, so far as the assets of the company available
for payment of general creditors are insufficent to meet them, have priority over the claims of holders of debentures under floating charge created by the company, and be paid accordingly out of any prop
erty comprised in or subject to that charge.
B.L.R.O.l/1984
LAWS OF BRUNEI
202
CAP. 39 Companies
(4) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them.
(5) In the event of a landlord or other person dis training or having distrained on any goods or effects of the company within 3 months next before the date of a winding up order, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof: Provided that, in respect of any money paid under any such charge, the land lord or other person shall have the same rights of priority as the person to whom the payment is made.
(6) In this section the expression "the relevant date" means-
(a) in the case of a company order to be wound up compulsorily which had not previously com menced to be wound up voluntarily, the date of the winding-up order; and
(b) in any other case, the date of the com
mencement of the winding up.
EFFECT OF WINDING UP ON ANTECEDENT AND OTHER TRANSACTIONS
Fraudulent preference
LAWS OF BRUNEI
Companies CAP. 39 203
(2) For the purposes of this section, the commence ment of the winding up shall be deemed to correspond with the presentation of the bankruptcy petition in the case of an individual. ·
(3) Any conveyance or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void to all intents.
252. Where a company is being wound up, a floating charge on the undertaking or property of the company cre ated within 6 months of the commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except to the amount of any cash paid to the company at the time of or subsequently to the creation of, and in considera tion for, the charge, together with interest on that amount at the rate of 5 per cent per annum.
253. (1) Where any part of the property of a company which is being wound up consists of land of any tenure burdened with onerous covenants, or shares or. stock in companies, of unprofitable contracts, or of any other prop erty that is unsaleable, or not readily saleable, by reason of its binding the posstssor thereof to the performance of any onerous act, or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has en deavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, may, with the leave of the Court and subject to the provisions of this section, by writing signed by him, at any time within 12 months after the commencement of the winding up or such extended period as may be allowed by the Court, disclaim the property: Provided that, where any such property has not come to the knowledge of the liquidator within one month after the commencement of the winding up, the pow er under this section of disclaiming the property may be exercised at any time within 12 months after he has become
Effect of floating charge
Disclaimer of onerous property in case of com pany wound up
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204 CAP. 39 Companies
aware thereof or such extended period as may be allowed by the Court.
(2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest, and liabili ties of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the com pany and the property of the company from liability, affect the rights or liabilities of any other person.
(3) The Court, before or on granting leave to dis claim, may require such notices to be given to persons in terested, and impose such terms as a condition of granting leave, and make such other order in the matter as the Court thinks just.
(4) The liquidator shall not be entitled to disclaim any property under this section in any case where an ap plication in writing has been made to him by any persons interested in the property requiring him to decide whether he will or will not disclaim, and the liquidator has not, with in a period 28 days after the receipt of the application or such further period as may be allowed by the Court, given notice to the applicant that he intends to apply to the Court for leave to disclaim, and, in the case of a contract, if the liquidator, after such an application as aforesaid, does not within the said period or further period disclaim the con tract, the company shall be deemed to have adopted it.
(5) The Court may, on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non performance of the contract, or otherwise as the Court thinks just, and any damages payable under the order to any such person may be proved by him as a debt in the winding up.
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(6) The Court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property and on hearing any such persons as it thinks fit, make an order for the vesting of the property in or the delivery of the property to any persons entitled there to, or to whom it may seem just that the property should be delivered by way of compensation for such liability as
- aforesaid, or a trustee for him, and on such terms as the Court thinks just, and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any con veyance or assignment for the purpose: Provided that, where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the company, whether as under-lessee or as mortgagee by demise, including a chargee by way of legal mortgage, except upon the terms of making that person -
(a) subject to the same liabilities and obliga tions as those to which the company was subject under the lease in respect of the property at the commencement of the winding up; or
(b) if the Court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date,
and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is will ing to accept an order upon such terms, the Court shall have power to vest the estate and interest of the company in the property in any person liable either personally or in a repre sentative character, and either alone or jointly with the company to perform the lessee's covenants in the lease,
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206
Restriction of rights of cre ditor as to ex ecution or attachment in case of com pany being wound up
freed and discharged from all estates, incumbrances and interests created therein by the company.
(7) Any person injured by the operation of a dis claimer under this section shall be deemed to be a creditor of the company to the amount of the injury, and may accor dingly prove the amount as a debt in the winding up.
(a) where any creditor has had notice of a meet ing having been called at which a resolution for voluntary winding up is to be proposed, the date on which the creditor so had the notice shall for the purposes of the foregoing provision be substituted for the date of the commencement of the winding up; and
(b) a person who purchases in good faith under a sale by the bailiff any goods of a company on which an execution has been levied shall in all cases acquire a good title to them against the liquidator.
(2) For the purposes of this section, an execution against goods shall be taken to be completed by seizure and sale, and an attachment of a debt shall be deemed to be completed by receipt of the debt, and an execution against land shall be deemed to be completed by registration of the prohibitory order in the Land Office, and in the case of an equitable interest, by the appointment of a receiver.
LAWS OF BRUNEI
Companies CAP. 39 207 (3) In this section the expression "goods" includes
all chattels personal, and the expression "bailiff" includes
any officer charged with the execution of a writ or other process.
255. (1) Where any goods of a company are taken in ex ecution, and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that a provisional liquidator has been appointed or that a winding-up order has been made or that a resolution for voluntary winding up has been passed, the bailiff shall, on being so required, deliver the goods and any money seized or received in part satisfaction of the execution to the liquidator, but the costs of the execution shall be a first charge on the goods or money so delivered, and the liquidator may sell the goods, or a sufficient part thereof, for the purpose of satisfying that charge.
Duties of bailiff as to goods taken in execution
(2) Where under an execution in respect of a judg ment for a sum exceeding $200 the goods of a company are sold or money is paid in order to avoid sale, the bailiff shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for 14 days, and if within that time notice is served on him of a petition for the winding up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company and an order is made or a resolution is passed, as the case may be, for the winding up of the company, the bailiff shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor.
(3) In this section the expression "goods" includes all chattels personal, and the expression "bailiff" includes any officer charged with the execution of a writ or other process.
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208
Offences by officers of companies in liquidation
OFFENCES ANTECEDENT TO OR IN COURSE OF WINDING UP
256. (1) If any person, being a past or present director, manager or other officer of a company which at the time of the commission of the alleged offence is being wound up, whether by or under the supervision of the Court or volun tarily, or is subsequently ordered to be wound up by the Court or subsequently passes a resolution for voluntary winding up
(a) does not to the best of his knowledge and belief fully and truly discover to the liquidator all the property, real and personal, of the company, and how and to whom and for what consideration and when the company disposed of any part there of, except such part as has been disposed of in the ordinary way of the business of the company;
(b) does not deliver up to the liquidator, or as he directs, all such part of the real and personal property of the company as is in his custody or under his control, and which he is required by law to deliver up;
(c) does not deliver up to the liquidator, or as he directs, all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up;
(d) within 12 months next before the com mencement of the winding up or at any time there after conceals any part of the property of the com pany to the value of $100 or upwards, or conceals any debt due to or from the company;
(e) within 12 months next before the com
mencement of the winding up or at any time there-
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Companies CAP. 39 209
after fraudulently removes any part of the property of the company to the value of $50 or upwards;
(f) makes any material omission in any state
ment relating to the affairs of the company;
(g) knowing or believing that a false debt has been proved by any person under the winding up, fails for the period of a month to inform the liquidator thereof;
(h) after the commencement of the winding up prevents the production of any book or paper affecting or relating to the property or affairs of the company;
(i) within 12 months next before the commence ment of the winding up or at any time thereafter, conceals, destroys, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of, any book or paper affecting or relating to the property or affairs of the company;
U) within 12 months next before the commence ment of the winding up or at any time thereafter makes or is privy to the making of any false entry in any book or paper affecting or relating to the property or affairs of the company;
(k) within 12 months next before the com mencement of the winding up or at any time there after fraudulently parts with, alters, or makes any omission in, or is privy to the fraudulent parting with, altering, or making any omission in, any document affecting or relating to the property or affairs of the company;
(£) after the commencement of the winding up or at any meeting of the creditors of the company
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210 CAP. 39 Companies
within 12 months next before the commencement
· of the winding up attempts to account for any part
of the property of the company by fictitious losses or expenses;
(m) has within 12 months next before the com mencement of the winding up or at any time there after, by any false representation or other fraud, obtained any property for or on behalf of the com pany on credit which the company does not subse quently pay for;
(n) within 12 months next before the com mencement of the winding up or at any time there after, under the false pretence that the company is carrying on its business, obtains on credit, for or on behalf of the company, any property which the company does not subsequently pay for;
(o) within 12 months next before the com mencement of the winding up or at any time there after pawns, pledges, or disposes of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging, or disposing is in the ordinary way of the business of the company; or
(p) is guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the com pany or to the winding up,
he shall, be guilty of an offence: Penalty, in the case of offences mentioned respectively in paragraphs (m), (n) and (o) imprisonment for 5 years and in any other case imprison ment for 2 years: Provided that it shall be a good defence to a charge under any of paragraphs (a), (b), (c), (d), (f), (n) and (o), if the accused proves that he had no intent to
LAWS OF BRUNEI
Companies CAP. 39 211
defraud, and to a charge under any of paragraphs (h), (i) and (j), if he proves that he had no intent to conceal the state of affairs of the company or to defeat the law.
(2) Where any person pawns, pledges or disposes of any property in circumstances which amount to a misde meanor under paragraph (o) of subsection (1), any person who takes in pawn or pledge or otherwise receives the prop erty knowing it to be pawned, pledged, or disposed of in such circumstances as aforesaid shall be guilty of an offence: Penalty, imprisonment for 5 years.
(3) For the purposes of paragraph (o) of subsection (1) of this section, a person who has sent out of Brunei or purports to have sent out of Brunei any property which has been obtained by or on behalf of the company on credit and not paid for, shall be deemed, unless he proves the contrary, to have disposed of such otherwise than in the ordinary way of the business of the company, if the person to whom such property was or is purported to have been sent cannot be found or does not pay for the same within a reasonable time after being required to do so by the liquida tor of the company.
(4) For the purposes of this section, the expression "director" shall include any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.
257. If any director, manager or other officer, or contribu tory of any company being wound up destroys, mutilates, alters, or falsifies any books, papers, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence: Penalty, imprisonment for 2 years.
Penalty for falsification of books
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212
Frauds by officers of companies which have gone into liquidation
Liability where proper accounts not kept
CAP. 39 Companies
258. If any person, being at the time of the commission of the alleged offence a director, manager or other officer of the company which is subsequently ordered to be wound up by the Court or subsequently passes a resolution for volun tary winding up -
(a) has by false pretences or by means of any other fraud induced any person to give credit to the company;
(b) with intent to defraud creditors of the com pany, has made or caused to be made any gift or transfer of or charge on, or has caused or connived at the levying of any execution against, the proper ty of the company; or
(c) with intent to defraud creditors of the com pany, has concealed or removed any part of the property of the company since, or within two months before, the date of any unsatisfied judg ment or order for payment of money obtained against the company;
he shall be guilty of an offence: Penalty, imprisonment for 2 years.
259. (1) If where a company is wound up it is shown that proper books of account were not kept by the company throughout the period of 2 years immediately preceding the commencement of the winding up, every director, manager or other officer of the company who was knowingly a party to or connived at the default of the company shall, unless he shows that he acted honestly or that in the circumstances in which the business of the company was carried on the de fault was excusable, be guilty of an offence: Penalty, impris onment for one year.
(2) For the purposes of this section, proper books of account shall be deemed not to have been kept in the case of
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Companies CAP. 39 213
any company if there have not been kept such books or accounts as are necessary, to exhibit and explain the trans actions and financial position of the trade or business of the company, including books containing entries from day to day in sufficient detail of ail cash received and cash paid, and, where the trade or business has involved dealings in goods, statements of the annual stocktakings and (except in the case of goods sold by way of ordinary retail trade) of all goods sold and purchased, showing the goods and the buyers and sellers thereof in sufficient detail to enable those goods and those buyers and sellers to be identified.
260. (1) If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or credi tors of any other person or for any fraudulent purpose, the Court, on the application of the Official Receiver, or the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do, declare that any of the directors, whether past or present, of the company who were knowingly parties to the carrying on of the business in manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court may direct.
(2) Where the Court makes any such declaration, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration, and in particular may make provision for making the liability of any such director under the declaration a charge on any debt or obligation due from the company to him, or on any mort gage or charge or any interest in any mortgage or charge on any assets of the company held by or vested in him, or any company or person on his behalf, or any person claiming as assignee from or through the director, company or person, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge im posed under this subsection.
Responsibil ity of direc tors for fraudulent trading
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214 CAP. 39 Companies
For the purpose of this subsection, the expression "assignee" includes any person to whom or in whose favour, by the directions of the director, the debt, obligation, mort gage or charge was created, issued or transferred or the interest created, but does not include an assignee for valu able consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
(3) Where any business of a company is carried on with such intent or for such purpose as is mentioned in subsection (1), every director of the company who was kno wingly a party to the carrying on of the business in manner aforesaid, shall be guilty of an offence: Penalty, imprison ment for one year.
(4) The Court may, in the case of any person in respect of whom a declaration has been made under subsec tion (1), or who has been convicted of an offence under subsection (3), order that that person shall not, without the leave of the Court, be a director of or in any way, whether directly or indirectly, be concerned in or take part in the management of a company for such period, not exceeding 5 years, from the date of the declaration or of the conviction, as the case may be, as may be specified in the order, and if any person acts in contravention of an order made under this subsection he shall be guilty of an offence: Penalty, imprisonment for 2 years, and a fine of $5,000. In this subsection the expression the Court in relation to making of
an order, means "the Court" by which the declaration was - made or the Court before which the person was convicted,
as the case may be, and in relation to the granting of leave means any court having jurisdiction to wind up the com- pany.
(5) For the purposes of this section, the expression
"director" shall include any person in accordance with - whose directions or instructions the directors of a company
have been accustomed to act.
LAWS OF BRUNEI
Companies CAP. 39 215 (6) The provisions of this section shall have effect
notwithstanding that the person concerned may be criminal
ly liable in respect of the matters on the ground of which the declaration is to be made, and where the declaration under subsection (1) is made in the case of a winding up the dec laration shall be deemed to be a final judgment for the
purpose of any written law relating to Bankruptcy.
(7) It shall be the duty of the Official Receiver or of the liquidator to appear on the hearing of an application for leave under subsection (4), and on the hearing of an applica tion under that subsection or under subsection (1) the Of ficial Receiver or the liquidator, as the case may be, may himself give evidence or call witnesses.
261. (1) If in the course of winding up a company it appears that any person who has taken part in the formation or promotion of the company, or any past or present direc tor, manager, or liquidator, or any officer of the company, has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance or breach of trust in relation to the com pany, the Court may, on the application of the Official Re ceiver, or of the liquidator, or of any creditor or contribu tory, examine into the conduct of the promoter, director, manager, liquidator, or officer, and compel him to repay or restore the money or property or any part thereof respec tively with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance, or breach of trust as the Court thinks just.
(2) The provisions of this section shall have effect notwithstanding that the offence is one for which the offen der may be criminally liable.
(3) Where in the case of a winding up an order for payment of money is made under this section, the order shall be deemed to be a final judgment within the meaning
Power of Court to assess dam ages against delinquent directors, etc.
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CAP. 39 Companies
of paragraph (g) of subsection (i) of section 3 of Bankruptcy
Act.
Prosecution of delinquent officers and members of company
262. (1) If it appears to the Court in the course of a wind ing up by, or subject to the supervision of, the Court that any past or present director, manager or other officer, or any member, of the company has been guilty of an offence in relation to the company for which he is criminally liable, the Court may, either on the application of any person in terested in the winding up or of its own motion, direct the liquidator either himself to prosecute the offender or to refer the matter to the Public Prosecutor.
(2) If it appears to the liquidator in the course of a voluntary winding up that any past or present director, man ager or other officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter, to the Public Prosecutor, and shall furnish to him such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator and relating to the matter in ques tion, as he may require.
(3) Where any report is made under subsection (2) to the Public Prosecutor, he may, if he thinks fit, refer the matter to the Official Receiver for further inquiry, and he shall thereupon investigate the matter and may, if he thinks it expedient, apply to the Court for an order conferring on him or any person designated by him for the purpose with respect to the company concerned all such powers of investi- gating the affairs of the company as are provided by this Act in the case of a winding up by the Court.
(4) If on any report to the Public Prosecutor under subsection (2) it appears to him that the case is not one in which proceedings ought to be taken by him, he shall inform the liquidator accordingly; and thereupon, subject to the
LAWS OF BRUNEI
Companies CAP. 39 217
previous sanction of the Court, the liquidator may himself take proceedings against the offender.
(5) If it appears to the Court in the course of a volun tary winding up that any past or present director, manager or other officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the Public Pro secutor under subsection (2), the Court may, on the applica tion of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly the provisions of this sec tion shall have effect as though the report had been made in pursuance of the provisions of subsection (2).
(6) If, where any matter is reported or referred to the Public Prosecutor under this section, he considers that the case is one in which a prosecution ought to be instituted and, further, that it is desirable in the public interest that the proceedings in the prosecution should be conducted by him, he shall institute proceedings accordingly, and it shall be the duty of the liquidator and of every officer and agent of the company past and present (other than the defendant in the proceedings) to give him all assistance in connexion with the prosecution which he is reasonably able to give.
For the purposes of this subsection, the expression "agent" in relation to a company shall be deemed to include any banker or advocate of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company.
(7) If any person fails or neglects to give assistance in manner required by subsection (6), the Court may, on the application of the Public Prosecutor, direct that person to comply with the requirements of the said subsection, and where any such application is made with respect to a liquida-
'- tor the Court may, unless it appears that the failure or neg
lect to comply was due to the liquidator not having in his
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218 CAP. 39 Companies
hands sufficient assets of the company to enable him so to do, direct that the costs of the application shall be borne by the liquidator personally.
(8) The Court may direct that the whole or part of any costs and expenses properly incurred by the liquidator in proceedings duly brought by him under this section shall be defrayed as expenses incurred by the liquidator under this Act in relation to the winding up of companies. Subject to any direction under this subsection and to any mortgages or charges on the assets of the company and any debts to which priority is given by section 250, all such costs and expresses as aforesaid shall be payable out of those assets in priority to all other liabilities payable thereout.
Disqualifica· 263. (1) A body corporated shall not be qualified for appointment appointment as liquidator of a company, whet er m a wm - as liquidator ing up by or under the supervision of the Court or in a voluntary winding up, and any appointment made in con
travention of this provision shall be void.
(2) Nothing in this section shall disqualify a body corporate from acting as liquidator of a company if acting "under an appointment made before the commencement of this Act, but subject as aforesaid any body corporate which acts as liquidator of a company shall be guilty of an offence: Penalty, a fine of $1,000.
Enforcement of duty of liquidator to make re turns, &c.
264. (1) If any liquidator, who has made any default in filing, delivering or making any return, account or other document, or in giving any notice which he is by law re quired to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so, the Court may, on an application made to the Court by any contributory or creditor of the company or by the Registrar, make an order directing the liquidator to make good the default within such time as may be specified in the order.
LAWS OF BRUNEI
Companies CAP. 39 219
(2) Any such order may provide that all costs of and incidental to the application shall be borne by the liquida tor.
(3) Nothing in this section shall be taken to pre judice the operation of any enactment imposing penalties on a liquidator in respect of any such default as aforesaid.
Notification that a com pany is in li quidation
(2) If default is made in complying with this section, the company and every director, manager, secretary or other officer of the company, and every liquidator of the company and every receiver or manager, who knowingly and wilfully authorises or permits the default, shall be guilty of an offence: Penalty, a fine of $1,000.
Exemption of certain docu ments from stamp duty
on winding
up of com-
. panies
(a) every assurance relatmg solely to freehold
or leasehold property, or to any mortgage, charge or other incumbrance on, or any estate, right or interest in, any real or personal property, which forms part of the assets of the company and which, after the execution of the assurance, either at law or in equity, is or remains part of the assets of the company; and
(b) every power of attorney, proxy paper, writ, order, certificate, affidavit, bond or other instru-
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220
CAP. 39 Companies
ment or writing relating solely to the property of any company which is being so wound up, or to any proceeding under any such winding up,
Cap. 34
Books of company to be evidence
Disposal of books and papers of company
shall be exempt from duties chargeable under the Stamp
Act.
In this section the expression "assurance" includes deed, conveyance, assignment and surrender.
267. Where a company is being wound up, all books and papers of the company and of the liquidators shall, as be tween the contributories of the company be prima facie evi dence of the truth of all matters purporting to be therein recorded.
268. (1) Where a company has been wound up and is ab out to be dissolved, the books and papers of the company and of the liquidators may be disposed as follows, that is to say-
(a) in the case of a winding up by, or subject to the supervision of, the Court in such way as the Court directs;
(b) in the case of a members' voluntary winding up, in such way as the company by extraordinary resolution directs, and, in the case of a creditors' voluntary winding up, in such way as the commit tee of inspection or, if there is no such committee, as the creditors of the company, may direct.
(2) After 5 years from the dissolution of the com pany no responsibility shall rest on the company, the li quidators, or any person to whom the custody of the books and papers has been committed, by reason of any book or paper not being forthcoming to any person claiming to be interested therein.
LAWS OF BRUNEI
Companies CAP. 39 221 (3) Provision may be made by general rules for
enabling the Official Receiver to prevent, for such period (not exceeding 5 years from the dissolution of the company) as he thinks proper, the destruction of the books and papers of the company which has been wound up, and for enabling any creditor or contributory of the company to make repre sentations to him, and to appeal to the Court from any direction which may be given by him in the matter.
(4) If any person acts in contravention of any general rules made for the purposes of this section or of any direc tion of the Official Receiver thereunder, he shall be guilty of an offence: Penalty, a fine of $1,000.
269. (1) If where a company is being wound up the wind ing up is not concluded within one year after its commence ment, the liquidator shaH, at such intervals as may be pre scribed, until the winding up is concluded, send to the Reg istrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.
(2) Any person stating himself in writing to be a creditor or contributory of the company shall be entitled, by himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement, and to re ceive a copy thereof or extract therefrom.
(3) If a liquidator fails to comply with this section, he shall be liable to a fine of $25 for each day during which the default continues, and any person untruthfully stating him self as aforesaid to be a creditor or contributory shall be guilty of a contempt of Court, and shall, on the application of the liquidator or of the Official Receiver, be punishable accordingly.
Information as to pending liquidations
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CAP. 39 Companies
Unclaimed assets to be paid to com panies liquidation account
Resolutions passed at ad JOurned meetings of creditors and contributor ies
270. (1) If, where a company is being wound up it appears either from any statement sent to the Registrar under sec tion 269 or otherwise that a liquidator has in his hands or under his control any money representing unclaimed or un distributed assets of the company which have remained un claimed or indistributed for 6 months after the date of their receipt, the liquidator shall forthwith pay the said money to the companies liquidation account, and shall be entitled to the prescribed certificate of receipt for the money so paid, and that certificate shall be an effectual discharge to him in respect thereof.
(2) For the purpose of ascertaining and getting in any money payable into the bank in pursuance of this sec tion, the liquidator may be called upon by the Court to account for any unclaimed or undistributed assets of the company and any failure to comply with the requisitions of the Court in this behalf may be dealt with as a contempt of Court.
(3) Any person claiming to be entitled to any money paid into the bank in pursuance of this section may apply to the Official Receiver for payment thereof, and the Offiical Receiver may, on a certificate by the liquidator that the person claiming is entitled, make an order for the payment to that person of the sum due.
(4) Any person dissatisfied with the decision of the Official Receiver in respect of a claim made in pursuance of this section may appeal to the Court.
271. Where after the commencement of this Act a resolu tion is passed at an adjourned meeting of any creditors or contributories of a company the resolution shall, for all pur poses, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.
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Companies CAP. 39 223
SUPPLEMENTARY POWERS OF COURT
272. (1) The Court may, as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories of the company, as proved to it by any sufficient evidence, and may, if it thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held, and conducted in such manner as the Court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the Court.
(2) In the case of creditors, regard shall be had to the value of each creditor's debt.
(3) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the articles.
273. In all proceedings under this Part, all Courts, judges, and persons judicially acting, and all officers, judicial or ministerial, of any Court, or employed in enforcing the pro cess of any Court, shall take judicial notice of the signature of any officer of the Supreme Court, and also of the official seal or stamp of the several offices of the Supreme Court, appended to or impressed on any document made, issued, or signed under the provisions of this part, or any official copy thereof.
274. (1) Any affidavit required to be sworn under the pro visions or for the purposes of this Part may be sworn in Brunei, or elsewhere within the Commonwealth, before any Court, judge or person lawfully authorised to take and re ceive affidavits or before any of Brunei consuls or vice consuls in any place outside Brunei.
(2) All Courts, judges, justices, commissioners, and persons acting judicially shall take judicial notice of the seal
Meetinps to ascertam wishes of cre ditors or con tribumrit's
Judicial notice of signature of officers
Affidavits, etc. in Brunei and the Com monwealth
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Power of Court to de clare dissolu tion of com pany void
Registrar may strike defunct com pany off reg Ister
or stamp or signature, as the case may be, of any such Court, judge, person, consul, or vice-consul attached, appended, or subscribed to any such affidavit, or to any other document to be used for the purposes of this Part.
PROVISIONS AS TO DISSOLUTION
275. (1) Where a company has been dissolved, the Court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquida tor of the company or by any other person who appears to the Court to be interested, make an order, upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dis solved.
(2) It shall be the duty of the person on whose ap plication the order was made, within 7 days after the making of the order, or such further time as the Court may allow, to deliver to the Registrar for registration an office copy of the order, and if that person fails so to do shall be guilty of an offence: Penalty, a fine of $25 for every day during which the default continues.
276. (1) Where the Registrar has reasonable cause to be lieve that a company is not carrying on business or in opera tion, he may send to the company by post a letter inquiring whether the company is carrying on business or in opera tion.
(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall with in 14 days after the expiration of the month send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received, and that if an answer is not received to the second letter within one month from the date thereof, a notice will be
LAWS OF BRUNEI
Companies CAP. 39 225 published in the Gazette with a view to striking the name of
the company off the register.
(3) If the Registrar either receives an answer to the effect that the company is not carrying on business or in operation, or does not within one month after sending the second letter receive an answer, he may publish in the Gazette and send to the company by post, a notice that at the .expiration of 3 months from the date of that notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved.
(4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of 6 consecutive months, the Registrar shall publish in the Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (3).
(5) Where the Registrar is of the opinion that the register ·d office of a company or the name and address of a liquidator or subscriber to the memorandum of association of a company cannot be ascertained, or the Registrar is of the opinion that a letter or notice to be sent under subsec tion (1), (2), (3) or (4) is unlikely to be received by the person to whom it would be directed, it shall be sufficient compliance with the provisions of.the said subsections if the
-- Registrar shall publish in the Gazette a notice stating that at the expiration of 3 months from the date of the publication of such notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved.
(6) At the expiration of the time specified in any notice referred to in subsection (3), (4) or (5) the Registrar may, unless cause to the contrary is previously shown, strike
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226 | CAP. 39 Companies | |
its name off the register, and shall publish notice thereof in the Gazette and on the publication in the Gazette of this | - | |
notice the company shall be dissolved: Provided that- |
(a) the liability, if any, of every director, man aging officer, and member of the company shall continue and may be enforced as if the company had not been dissolved; and
(b) nothing in this subsection shall affect the power of the Court to wind up a company the name of which has been struck off the register.
(7) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the Court on an application made by the company or member or creditor before the expiration of 20 years from the publication in the Gazette of the notice aforesaid may, if satisfied that the company was at the time of the striking off carrying on business or in operation, or other wise that it is just that the company be restored to the register, order the name of the company to be restored to the register, and upon an office copy of the order being delivered to the Registrar for registration the company shall be deemed to have continued in existence as if its name had not been struck off; and the Court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same posi tion as nearly as may be as if the name of the company had not been struck off.
(8) A notice to be sent under this section to a li quidator may be addressed to the liquidator at his last known place of business, and a letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or, if no office has been registered, to the care of some director or officer of the company or, if there is no director or officer of the company whose name and address are known to the Registrar, may
LAWS OF BRUNEI
Companies CAP. 39 227 be sent to each of the persons who subscribed the memoran
dum, addressed to him at the address mentioned in the
memorandum.
277. Where a company is dissolved, all property and rights whatsoever vested in or held on trust for the company im mediately before its dissolution (including leasehold proper ty but not including property held by the company on trust for any other person) shall, subject and without prejudice to any order which may at any time be made by the Court under sections 275 and 276, be deemed to be bona vacantia and shall accordingly belong to the Government of Brunei, and subject to any necessary modification shall vest and may be dealt with in the same manner as other bona vacantia accruing to the Crown of England.
CENTRAL ACCOUNTS
278. (1) An account, to be called the companies liquida tion account, shall be kept by the Official Receiver at such bank as His Majesty may from time to time direct, and all moneys received by the Official Receiver in respect of pro ceedings under this Act in connexion with the winding up of companies shall be paid to that account.
(2) All payments out of money standing to the credit of the Official Receiver in the companies liquidation account shall be made in the prescribed manner.
279. (1) Whenever the cash balance standing to the credit of the companies liquidation account is in excess of the amount which in the opinion of the Official Receiver is required for the time being to answer demands in respect of companies' estates, he shall notify the excess to the Perma nent Secretary, and shall pay over the whole or any part of that excess, as the Permanent Secretary may require, to the Permanent Secretary, to such account as the Permanent Secretary may direct, and the Permanent Secretary may
Property of dissolved company to be bona vacantia
Companies liquidation account
Investment of surplus funds on general account
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CAP. 39 Companies
invest the sums paid over, or any part thereof, in Govern ment securities, to be placed to the credit of the said account.
(2) When any part of the money so invested is, in the opinion of the Official Receiver, required to answer any demands in respect of companies' estates, he shall notify to the Permanent Secretary the amount so required, and the Permanent Secretary shall thereupon repay to the Official Receiver such sum as may be required to the credit of the companies liquidation account, and for that purpose may direct the sale of such part of the said securities as may be necessary.
(3) The income on investments under this section, any profits realised on the sale of such investments and any bank interest received shall be paid into the companies li quidation account, and the Official Receiver shall on or before the 31st day of December in each year transfer to the general revenue the accumulated balance of such income, profits and bank interest, after deducting therefrom any los ses on the realization of such investments.
Separate accounts of particular estates
280. (1) An account shall be kept by the Official Receiver of the receipts and payments in the winding up of each company, and, when the cash balance standing to the credit of the account of any company is in excess of the amount which, in the opinion of the committee of inspection, is required for the time being to answer demands in respect of that company's estate, the Official Receiver shall, on the request of the committee, invest the amount not so required in Government securities, to be placed to the credit of the said account for the benefit of the company.
(2) When any part of the money so invested is, in the opinion of the committee of inspection, required to answer any demands in respect of the estate of the company, the Official Receiver shall, on the request of the committee raise such sum as may be required by the sale of such part of the said securities as may be necessary.
LAWS OF BRUNEI
Companies CAP. 39 229 (3) The dividends on investments under this section
shall be paid to the credit of the company.
RULES AND FEES
(2) His Majesty in Council may make rules to pro
vide for-
(a) the manner in which applications by persons desirous of being placed upon the authorised list of auditors shall be made;
(b) the examination of such applications and if
thought fit of applicants by an Advisory Board;
(c) the establishment of an Advisory Board to advise His Majesty in Council in relation to such applications and also as to whether the name of any person on the authorised list should be re moved therefrom;
(d) anything which may require to be pre
scribed; and
(e) carrying this Act into effect.
(3) All rules made under this section shall be judi
cially noticed, and shall have effect as if enacted by this Act.
(4) There shall be paid in respect of proceedings under this Act, where no fee is otherwise fixed, such fees as the Chief Justice may, with the sanction of His Majesty
General rules and fees
Rules by His Majesty in Council
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CAP. 39 Companies
direct, and he may direct by whom and in what manner the same are to be collected and accounted for.
PART VI
RECEIVERS AND MANAGERS
Disqualifica- 282. (1) A body corporate shall not be qualified for -
appointment appomtment as receiver o t e property o a company.
as receiver
(2) Any body corporate which acts as receiver as aforesaid shall be liable to a fine of $1,000.
Power to appoint Of ficial Receiv er as receiver for debenture holders or creditors
Notification that receiver or manager appointed
Power of Court to fix remuneration on applka· tion of liquidator
283. Where an application is made to the Court to appoint a receiver on behalf of the debenture holders or other credi tors of a company which is being wound up by the Court, the Official Receiver may be so appointed.
284. (1) Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the com pany or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver or manager has been appointed.
(2) If default is made in complying with require ments of this section, the company and every director, man ager, secretary or other officer of the company, and every liquidator of the company, and every receiver or manager who knowingly and wilfully authorises or permits the de fault, shall be guilty of an offence: Penalty, a fine of $500.
285. The Court may, on an application made to the Court by the liquidator or a company, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver or manager of the property of the company, and
LAWS OF BRUNEI
. ,•, Companies CAP. 39 231
may from time to time, on an application made either by the liquidator or by the receiver or manager, vary or amend any order so made.
286. (1) Every receiver or manager of the property of a company who has been appointed under the powers con tained in any instrument shall, within one month, or such longer period as the Registrar may allow, after the expira tion of the period of 6 months from the date of his appoint ment and of every subsequent period of 6 months and within one month after he ceases to act as receiver or manager, deliver to the Registrar for registration an abstract in the prescribed form showing his receipts and his payments dur ing that period of 6 months, or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amount of his receipts and of his payments during all preceding periods since his appointment.
(2) Any receiver or manager who makes default in complying with the provisions of this section shall be guilty of an offence: Penalty, a fine of $50 for every day during which the default continues.
287. (1) If-
(a) any receiver of the property of a company, who has made default in filing, delivering or mak ing any return, account or other document or in giving any notice, which a receiver is by law re quired to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so; or
(b) any receiver or manager of the property of a company who has been appointed under the pow ers contained in any instrument, has, after being required at any time by the liquidator of the com-
Delivery to Registrar nl account' nl receivers and managers
Enforcement of duty of receiver to make
returns, etc.
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LAWS OF BRUNEI
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CAP. 39 Companies
pany so to do, failed to render proper accounts of his receipts and payments and to pay over to the liquidator the amount properly payable to him;
the Court may, on an application made for the purpose, make an order directing the receiver or manager, as the case may be, to make good the default within such time as may be specified in the order.
(2) In the case of any such default as is mentioned in paragraph (a) of subsection (1) an application for the pur poses of this section may be made by any member or credi tor of the company or by the Registrar and the order may provide that all costs of and incidental to the application shall be borne by the receiver, and in the case of any such default as is mentioned in paragraph (b) of that subsection the application shall be made by the liquidator.
(3) Nothing in this section shall be taken to pre judice the operation of any enactments imposing penalties on receivers in respect of such default as is mentioned in paragraph (a) of subsection (1).
PART VII
GENERAL PROVISIONS AS TO REGISTRATION
Registration offices and appointment of officers for purposes of this Act
(2) His Majesty may appoint such registrars, deputy and assistant registrars, clerks, and servants as he may think necessary for the purposes of this Act, and may make reg ulations with respect to their duties, and may remove any persons so appointed.
LAWS OF BRUNEI
Companies CAP. 39 233
the several matters mentioned in the table set out in the
Eighth
Eighth Schedule the several fees therein specified. Schedule
(2) All fees paid to the Registrar in pursuance of this
Act shall be paid into the Treasury.
(2) No process for compelling the production of any document kept by the Registrar shall issue from any Court except with the leave of that Court, and any such process if issued shall bear thereon a statement that it is issued with the leave of the Court.
(3) A copy of or extract from any document kept and registered at the office for the registration of com panies, certified to be a true copy under the hand of the Registrar (whose official position it shall not be necessary to prove), shall in all legal proceedings be admissible in evi dence as of equal validity with the original document.
291. (1) If a company, having made default in complying with any provision of this Act which requires it to file with, deliver or send to the Registrar any return, account or other document, or to give notice to him of any matter, fails to make good the default within 14 days after the service of a notice on the company requiring it to do so, the Court may,
Inspection, production and evidence of documents kept by Reg istrar
Enforcement of duty of company to make returns to Registrar
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LAWS OF BRUNEI
234
on an application made to the Court by any member or - creditor of the company or by the Registrar make an order
directing the company and any officer thereof to make good the default within such time as may be specified in the order.
(2) Any such order may provide that all costs of and incidental to the application shall be borne by the company
or by any officers of the company responsible for the de- - fault.
(3) Nothing in this section shall be taken to pre judice the operation of any enactment imposing penalties on a company or its officers in respect of any such default as aforesaid.
PART VIII
WINDING UP OF UNREGISTERED COMPANIES
Meaning of unregistered company
Winding up of unreg istered com panies
(a) a company registered under this Act; or
(b) a partnership, association or company which consists of less than 8 members and is not a foreign partnership, association or company.
(a) no unregistered company shall be wound up under this Act voluntarily or subject to supervi sion;
LAWS OF BRUNEI
Companies CAP. 39 235
(b) the circumstances in which an unregistered company may be wound up are as follows -
(i) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;
(ii) if the company is unable to pay its debts;
(iii) if the Court is of opinion that it is just and equitable that the company should be wound up;
(c) an unregistered company shall, for the pur poses of this Act, be deemed to be unable to pay its debts-
(i) if a creditor by assignment or otherwise, to whom the company is indebted in a sum ex ceeding $500 then due, has served on the com pany, by leaving at its principal place of busi ness, or by delivering to the secretary or some director, manager, or principal officer of the company, or by otherwise serving in such manner as the Court may approve or direct, a demand under his hand requiring the com pany to pay the sum so due, and the company has for 3 weeks after the service of the de mand neglected to pay the sum, or to secure or compound for it to the satisfaction of the creditor;
(ii) if any action or other proceeding has been instituted against any member for any debt or demand due, or claimed to be due, from the company, or from him in his character of member, and notice in writing of the institu tion of the action or proceeding having been served on the company by leaving the same at its principal place of business, or by delivering it to the secretary, or some director, manager,
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LAWS OF BRUNEI
236 CAP. 39 Companies
or principal officer of the company, or by otherwise serving the same in such manner as the Court may approve or direct, the company has not within lO days after service of the notice paid, secured, or compounded for the debt or demand. or procured the action or proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against the action or proceeding, and against all costs, damages, and expenses to be incur red by him by reason of the same;
(iii) if execution or other process issued on a judg ment, decree, or order obtained in any Court in favour of a creditor, against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsa tisfied;
(iv) if it is otherwise proved to the satisfaction of the Court that the company is unable to pay its debts.
(2) Where a company incorporated outside Brunei which has been carrying on business in Brunei ceases to carry on business in Brunei, it may be wound up as an unregistered company under this Part notwithstanding that it has been dissolved or otherwise ceased to exist as a com pany under or by virtue of the laws of the country under which it was incorporated.
oi_Jtri ut r- 294. (1) In the event of an unregistered company being wound up, every person shall be deemed to be a contribu
istcrcd com- tory who is liable to pay or contribute to the payment of any
pany
debt or liability of the company, or to pay or contribute to
the payment of any sum for the adjustment of the rights\of
the members themselves, or to pay or contribute to e payment of the costs and expenses of winding up the com
pany, and every contributory shall be liable to contribute to
LAWS OF BRUNEI
Companies CAP. 39 237
the assets of the company all sums due from him in respect of such liability as aforesaid.
(2) In the event of the death, bankruptcy, or in solvency, of any contributory, or marriage of any female contributory, the provisions of this Act with respect to the personal representatives, to the trustees of bankrupt or in solvent contributories, and to the liabilities of husbands and wives respectively, shall apply.
297. The provisions of this Part with respect to unreg istered companies shall be in addition to and not in restric tion of any provisions hereinbefore in this Act contained with respect to winding up companies by the Court, and the Court or liquidator may exercise any powers or do any act in the case of unregistered companies which might be exer cised or done by it or him in winding up companies formed and registered under this Act: Provided that an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only to the extent provided by this Part.
Power of Court to stay or restrain proceeding
Actions stayed on winding-up order
Provisions of Part VIII cumulative
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CAP. 39 Companies
PART IX
COMPANIES INCORPORATED OUTSIDE BRUNEI CARRYING ON BUSINESS WITHIN BRUNEI
Companies to which Part IX applies
Documents etc. to be del ivered to Registrar by companies carrying on business in Brunei
298. This Part shall apply to all companies incorporated outside Brunei which, after the commencement of this Act, establish a place of business in Brunei, and to all companies incorporated outside Brunei which have, before the com mencement of this Act, established a place of business in Brunei and continue to have an established place of business within Brunei at the commencement of this Act.
299. Companies incorporated outside Brunei which estab lish or have established a place of business in Brunei shall within 3 months from the commencement of this Act or from the establishment of the place of business, whichever is the later, deliver to the Registrar for registration -
(a) a certified copy of the charter, statutes or memorandum and articles of the company, or other instrument constituting or defining the con stitution of the company, and, if the instrument is not written in the English language, a certified translation thereof;
(b) a list of the directprof the company con taining such particulars with respect to the direc tors as are by this Act required to be contained with respect to directors in the register of the direc tors of a company;
(c) the names and addresses of some one or more persons resident in Brunei authorised to accept on behalf of the company service of process and any notices required to be served on the com pany.
LAWS OF BRUNEI
Companies CAP. 39 239
300. A company incorporated outside Brunei which shall have filed with the Registrar the documents specified in section 299, shall have the same power to acquire hold, and dispose of immovable property in Brunei as if it were a company incorporated under this Act.
301. If in the case any company to which this Part applies any alteration is made in -
(a) the charter, statutes, or memorandum and articles of the company or any such instrument as aforesaid;
(b) the directors of the company or the particu
lars contained in the list of the directors; or
(c) the names or addresses of the persons autho
rised to accept service on behalf of the company;
the company shall, within the prescribed time, deliver to the Registrar for registration a return containing the prescribed particulars of the alteration.
302. (1) Every company to which this Part applies shall in every calendar year make out a balance sheet in such form, and containing such particulars and including such docu ments, as under the provisions of this Act it would, if it had been a company within the meaning of this Act, have been required to make out and lay before the company in general meeting, and deliver a copy of that balance sheet to the Registrar for registration.
(2) If any such balance sheet is not written in the English language, there shall be annexed to it a certified translation thereof.
Power of companies in corporated outside
Brunei to hold immov
able property
Return to be delivered to Registrar where docu ments etc. altered
Balance sheet of company carrying on business in Brunei
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LAWS OF BRUNEI
240 CAP. 39 Companies
Obligation to 303. Every company to which this Part applies shall
state name of
company, whether li
mited and country where in corporated
(a) in every prospectus inviting subscriptions for
its shares or debentures in Brunei state the coun
try in which the company is incorporated;
(b) conspicuously exhibit on every place where it carries on business in Brunei the name of the company and the country in which the company is incorporated;
(c) cause the name of the company and of the country in which the company is incorporated to be stated in legible characters in all bill-heads and letter paper, and in all notices, advertisements, and other official publications of the company; and
(d) if the liability of the members of the com pany is limited, cause notice of that fact to be stated in legible characters in every such prospec tus as aforesaid and in all bill-heads, letter paper, notices, advertisements and other official publica tions of the company in Brunei and to be affixed on every place where it carries on its business.
Service on 304. Any process or notice required to be served on a hl!t1aPir Ix company to which this Part applies shall be sufficiently applies served if addressed to any person whose name has been delivered to the Registrar under this Part and left at or sent
by post to the address which has been so delivered: Pro
vided that-
(a) where any such company makes default in delivering to the Registrar the name and address of a person resident in Brunei who is authorised to accept on behalf of the company service of process or notices; or
LAWS OF BRUNEI
Companies CAP. 39 241
(b) if at any time all the persons whose names and addresses have been so delivered are dead or have ceased so to reside, or refuse to accept service on behalf of the company, or for any reason cannot be served,
a document may be served on the company by leaving it at or sending it by post to any place of business established by the company in Brunei.
Part applies is required to deliver to the Registrar sha 1l be delivered to the Registrar at the registration office.
documents to be filed
(2) If any company to which this Part applies ceases to have a place of business in Brunei, it shall forthwith give notice of the fact to the Registrar and as from the date on which notice is so given the obligation of the company to deliver any document to the Registrar shall cease.
Penalties
"certified" means certified in the prescribed man
ner to be a true copy or a correct translation;
"director" in relation to a company includes any person in accordance with whose directions or in structions the directors of the company are accus tomed to act;
"place of business" includes a share transfer or share registration office;
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242 CAP. 39 Companies
"prospectus" has the same meaning as when used in relation to a company incorporated under this Act.
PART X
RESTRICTIONS ON SALE OF SHARES AND OFFERS OFSHARESFORSALE
Provisions 308.
with respect
to prospec-
tuses of fore-
ign com-
panics invit- mg subscrip- tions for shares or offering
shares for sale
(1) It shall not be lawful for any person-
(a) to issue, circulate or distribute in Brunei any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside Brunei, whether the com pany has or has not established, or when formed will or will not establish, a place of business in Brunei, unless
(i) before the issue, circulation or distribution of the prospectus in Brunei a copy thereof, certified by the chairman and two other direc tors of the company as having been approved by resolution of the managing body, has been delivered for registration to the Registrar;
(ii) the prospectus states on the face of it that the copy has been so delivered;
(iii) the prospectus is dated;
(iv) the prospectus otherwise complies with this
Part; or
(b) to issue to any person in Brunei a form of application for shares in or debentures of such a company or intended company as aforesaid, unless the form is issued with a prospectus which com plies with this Part: Provided that this provision
LAWS OF BRUNEI
Companies CAP. 39 243 shall not apply if it is shown that the form of ap
plication was issued in connexion with an invita
tion made in good faith to a person to enter into an underwriting agreement with respect to the shares or debentures.
(2) This section shall not apply to the issue to ex isting members of debenture holders of a company of a prospectus or form of application relating to share in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons, but, subject as aforesaid, this sec tion shall apply to a prospectus or form of application whether issued on or with reference to the formation of a company or subsequently.
(3) Where any document by which any shares in or debentures of a company incorporated outside Brunei are offered for sale to the public would, if the company con cerned had been a company within the meaning of this Act, have been deemed by virtue of section 41 to be a prospectus issued by the company, that document shall be deemed to be, for the purposes of this section, a prospectus issued by the company.
(4) An offer of shares or debentures for subscription or sale to any person whose ordinary business or part of whose ordinary business it is to buy or sell shares or deben tures, whether as principal or agent, shall not be deemed an offer to the public for the purposes of this section.
(5) Section 40 shall extend to every prospectus to which this section applies.
(6) Any person who is knowingly responsible for the issue, circulation or distribution of any prospectus, or for the issue of a form of application for shares or debentures, in contravention of the provisions of this section shall be
- guilty of an offence: Penalty, a fine of $5,000 and imprison
ment for 2 years.
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(7) In this section and section 309 the expressions "prospectus, shares and debentures" have the same mean ings as when used in relation to a company incorporated under this Act.
Require ments as to prospectus
309. (1) In order to comply with this Part of this Act a prospectus in addition to complying with the provisions of sub-paragraphs (ii) and (iii) of paragraph (a) of subsection (1) of section 308 must -
(a) contain particulars with respect to the fol
lowing matters -
(i) the objects of the company;
(ii) the instrument constituting or defining the constitution of the company;
(iii) the enactments, or provisons having the force of an enactment, by or under which the incor poration of the company was effected;
(iv) an address in Brunei where the said instru ment, enactments or provisions, or copies thereof, and if the same are in a foreign lan guage a translation thereof certified in the pre scribed manner, can be inspected;
(v) the date on which and the country in which the company was incorporated;
(vi) whether the company has established a place
of business in Brunei, and, if so, the address - of its principal office in Brunei:
Provided that the provisions of sub-paragraphs (i), (ii), (iii) and (iv) shall not apply in the case of a prospectus issued more than 2 years after the date at which the company is entitled to commence business.
(b) subject to the provisions of this section, state the matters specified in Part I of the Third
LAWS OF BRUNEI
Companies CAP. 39 245
Schedule (other than those specified in paragraph
1 of the said Part I) and set out the reports spe cified in Part II of that Schedule subject always to the provisions contained in Part III of the said Schedule:
Provided that -
(a) where any prospectus is published as a news paper advertisement, it shall be a sufficient com pliance with the requirement that the prospectus must specify the objects of the company if the advertisement specifies the primary object with which the company was formed; and
(b) in paragraph 3 of Part I of the said Third Schedule a reference to the constitution of the company shall be substituted for the reference to the articles; and
(c) paragraph 1 of Part III of that Schedule shall have effect as if the reference to the memorandum were omitted therefrom.
(2) Any condition requiring or binding any applicant for shares or debentures to waive compliance with any re quirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, shall be void.
(3) In the event of non-compliance with or con travention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the non-compliance or contravention, if-
(a) as regards any matter not disclosed, he proves that he was not cognizant thereof;
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Restriction
on offering of shares for subscription
or sale
CAP. 39 Companies
(b) he proves that the non-compliance or con -
travention arose from an honest mistake of fact on
his part; or
(c) the non-compliance or contravention was in respect of matters which, in the opinion of the Court dealing with the case, were immaterial or were otherwise such as ought, in the opinion of that Court, having regard to all the circumstances of the case, reasonably to be excused;
Provided that, in the event of failure to include in a pros pectus a statement with respect to the matters contained in paragraph 15 of Part I of the Third Schedule, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed.
(4) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act apart from this section.
310. (1) It shall not be lawful for any person to go from house to house offering shares for subscription or purchase to the public or any member of the public. In this subsection the expression "house" shall not include an office used for business purposes.
(2) Subject as hereinafter provided in this subsec tion, it shall not be lawful to make an offer in writing to any member of the public (not being a person whose ordinary business or part of whose ordinary business it is to buy or sell shares, whether as principal or agent) of any shares for purchase, unless the offer is accompanied by a statement in writing (which must be signed by the person making the offer and dated) containing such particulars as are required by this section to be included therein and otherwise com plying with the requirements of this section, or, in the case of shares in a company incorporated outside Brunei,
LAWS OF BRUNEI
Companies CAP. 39 247 either by such a statement as aforesaid, or by such a pros
pectus as complies with this Part: Provided that the provi
sions of this subsection shall not apply -
(a) where the shares to which the offer relates are shares which are quoted on, or in respect of which permission to deal has been granted by, any recognised stock exchange in Brunei and the offer so states and specifies the stock exchange;
(b) where the shares to which the offer relates are shares which a company has alloted or agreed to allot with a view to their being offered for sale to the public; or
(c) where the offer was made only to persons with whom the person making the offer has been in the habit of doing regular business in the purchase or sale of shares.
(3) The written statement aforesaid shall not contain any matter other than the particulars required by this sec tion to be included therein, and shall not be in characters less large or less legible than any characters used in the offer or in any document sent therewith.
(4) The said statement shall contain particulars with respect to the following matters -
(a) whether the person making the offer is acting as principal or agent, and if as agent the name of his principal and an address in Brunei where that principal can be served with process;
(b) the date on which and the country in which the company was incorporated and the address of its registered or principal office in Brunei;
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(c) the authorised share capital of the company -
and the amount thereof which has been issued, the
classes into which it is divided and the rights of each class of shareholders in respect of capital, dividends and voting;
(d) the dividends, if any, paid by the company on each class of shares during each of the three financial years immediately preceding the offer, and if no dividend has been paid in respect of shares of any particular class during any of those years, a statement to that effect;
(e) the total amount of any debentures issued by the company and outstanding at the date of the statement, together with the rate of interest pay able thereon;
(f) the names and addresses of the directors of the company;
(g) whether or not the shares offered are fully paid up, and, if not, to what extent they are paid up;
(h) whether or not the shares are quoted on, or permission to deal therein has been granted by, any recognised stock exchange in Brunei or else where, and, if so, which, and, if not, a statement that they are not so quoted or that no such permis sion has been granted;
(i) where the offer relates to units, particulars of the names and addresses of the persons in whom the shares represented by the units are vested, the date of and the parties to any document defining the terms on which those shares are held, and an address in Brunei where that document or a copy thereof can be inspected.
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Companies CAP. 39 249
In this subsection the expression "company" means the company by which the shares to which the statement relates were or are to be issued.
(5) If any person acts, or incites, or causes or pro cures any person to act, in contravention of this section, he shall be guilty of an offence: Penalty, a fine of $2,000 and imprisonment for 6 months, and in the case of a second or subsequent offence a fine of $5,000 and imprisonment for
12 months.
(6) Where a person convicted of an offence under this section is a company (whether a company whithin the meaning of this Act or not) every director and every officer concerned in the management of the company shall be guil ty of the like offence unless he proves that the act constitut ing the offence took place without his knowledge or con sent.
(7) In this section, unless the context otherwise re quires, the expression "shares' means the shares of a com pany, whether a company within the meaning of this Act or not, and includes debentures and units, and the expression "unit" means any right or interest (by whatever name cal led) in a share, and for the purposes of this section a person shall not in relation to a company be regarded as not being a member of the public by reason only that he is a holder of shares in the company or a purchaser of goods from the company.
(8) Where any person is convicted of having made an offer in contravention of the provisions of this section, the Court before which he is convicted may order that any contract made as a result of the offer shall be void, and, where it makes any such order, may give such consequential directions as it thinks proper for the repayment of any money or the retransfer of any shares. Where the Court makes an order under this subsection (whether with or with out consequential directions) an appeal against the order and the consequential directions, if any, shall lie to the Court of Appeal.
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Prohibition of part nerships with more than twenty mem bers
PART XI -
PROHIBITION OF PARTNERSHIPS WITH MORE THAN TWENTY MEMBERS
311. No company, association, or partnership consisting of more than 20 persons shall be formed for the purpose of carrying on any business that has for its object the acquisi tion of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act.
MISCELLANEOUS OFFENCES
Penalty for false state ment
Ninth
Schedule
Penalty for improper use of word "Berhad"
Provision with respect to default fines and meaning of "officer in default"
313. If any person or persons trade or carry on business under any name or title of which "Berhad", or any contrac tion or imitation of that word, is the last word; that person or those persons shall, unless duly incorporated with limited liability, be liable to a fine of $50 for every day upon which that name or title has been used.
GENERAL PROVISIONS AS TO OFFENCES
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Companies CAP. 39 251
(2) For the purpose of any section in this Act which provides that an officer of a company who is in default shall be liable to a fine or penalty, the expression "officer who is in default" means any director, manager, J;ecr tary or other officer of the company, who knowingly and wilfully autho rises or permits the default, refusal or contravention men tioned in the section.
315. The Court or magistrate imposing any fine under this Act may direct that the whole or any part thereof shall be applied in or towards payment of the costs of the proceed ings, or in or towards rewarding the person on whose in formation or at whose suit the fine is recovered, and subject to any such direction all fines under this Act shall, notwith standing anything in any other Act, be paid into the Treasury.
316. (1) If any company fails to pay the whole or any part of any fine or penalty imposed by a Court or magistrate under this Act within one month of the day on which the said fine or penalty was imposed, the Registrar shall publish in the Gazette and send to the company by post a notice that at the expiration of 2 months from the date of such notice the name of the company mentioned therein will, unless the said fine or penalty be sooner paid, be struck off the register and the company will be dissolved.
Applications of fines
Penalty for failure to pay fine
(2) At the expiration of the time mentioned in the notice the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Gazette, and on such publication the company shall be dissolved: Pro vided that the liability (if any) of every director, managing officer, and member of the company shall continue and may be enforced as if the company had not been dissolved.
(3) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the Court on the application of the company or
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CAP. 39 Companies
member or creditor may, if satisfied that it is just that the -
company be restored to the register, order the name of the
company to be restored to the register, and thereupon the company shall be deemed to have continued in existence as if its name had not been struck off; and the Court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.
(4) A letter or notice under this section may be addressed to the company at its registered office, or, if no office has been registered, to the care of some director or officer of the company, or, if there is no director of officer of the company whose name and address are known to the Registrar of Companies, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum: Provided that no thing in this section shall affect any other legal method of enforcing fines or penalties imposed by a magistrate.
Saving as to private pro secutors
Saving for privileged communica tions
Service of documents on company
Costs in ac tions by cer tain limited companies
317. Nothing in this Act relating to the institution of cri minal proceedings by the Public Prosecutor shall be taken to preclude any person from instituting or carrying on any such proceedings.
318. Where proceedings are instituted under this Act against any person by the Public Prosecutor nothing in this Act shall be taken to require any person who has acted as advocate for the defendant to disclose any privileged com munication made to him in that capacity.
319. A document may be served on a company by leaving it at or sending it by post to the registered office of the company.
320. Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by credible testimony that there is
LAWS OF BRUNEI
Companies CAP. 39 253
reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs, and may stay all proceedings until the security is given.
321. (l) If in any proceeding for negligence, default, breach of duty, or breach of trust against a person to whom this section applies it appears to the Court hearing the case that that person is or may be liable in respect of the negili gence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that, having regard to all the circumstances of the case, including those con nected with his appointment, he ought fairly to be excused for the negiligence, default, breach of duty or breach of trust, that Court may relieve him, either wholly or partly, from his liability on such terms as the Court may think fit.
(2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court for relief, and the Court on any such application shall have the same power to relieve him as under this section it would have had if it had been a Court before which proceedings against that person for negligence, defauft, breach of duty or breach of trust had been brought.
- (3) Where any case to which subsection (l) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant ought in pursuance of that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.
Power of Court to grant relief in certain cases
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Power to en
force orders
Power to al ter tables and forms
CAP. 39 Companies
(4) The persons to whom this section applies are the -
following-
(a) directors of a company; (b) managers of a company; (c) officers of a company;
(d) persons employed by a company as au ditors, whether they are or are not officers of the company.
322. Orders made by the Court under this Act may be enforced and shall be subject to appeal in the same manner as orders made in a civil proceeding pending therein.
GENERAL PROVISIONS AS TO ALTERATION OF TABLES, FORMS AND FEES, ETC
323. (1) His Majesty in Council may by order specified in the Gazette alter Table A, the form in the Sixth Schedule and the table of fees in the Eighth Schedule, and may alter or add to Tables B, C, D and E in the First Schedule, and the forms in the Fifth Schedule.
(2) Any such order, when altered, shall be published in the Gazette, and thenceforth shall have the same force as if the alteration or addition authorised thereby had been included in one of the Schedules, but no alteration made in Table A shall affect any company registered before the al teration, or repeal, as respects that company, of any portion of that table.
LAWS OF BRUNEI
Companies CAP. 39 255
324. The fees specified in the Tenth Schedule and the rules specified in the Eleventh and Twelfth Schedules shaH re main in force until amended by any subsidiary legislation made under this Act.
Rules and
Fees
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LAWS OF BRUNEI
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[ss.ll, 114,
307, 323)
CAP. 39 Companies
FIRST SCHEDULE TABLE A
.REGULATIONS FOR MANAGEMENT OF A COMPANY LIMITED BY SHARES
PRELIMINARY -
1. In these regulations
"the Act" means the Companies Act.
1st Schedule
Table A
When any provision of the Act is referred to, the reference is to that provision as modified by any statute for the time being in force.
Unless the context otherwise requires, expressions defined in the Act or any statutory modification thereof in force at the date at which these regulations become binding on the company. shall have the meaning so defined.
SHARES
2. Subject to the provisions, if any, in that behalf of the memoran dum of association, and without prejudice to any special rights previous ly conferred on the holders of existing shares, any share may be issued with such preferred, deferred, or other special rights, or such restric tions, whether in regard to dividend, voting, return of share capital, or otherwise, as the company may from time to time by special resolution determine, and any preference share may, with the sanction of a special resolution, be issued on the terms that it is, or at the option of the company is liable, to be redeemed.
3. If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may be varied with the consent in writing of the holders of three-fourths of the issued shares of that class, or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the shares of the class. To every such separate general meeting the provisions of these regulations relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be 2 persons at least holding or representing by proxy one-third of the issued shares of the class and that any holder of shares of the class present in person or by proxy may demand a polL
LAWS OF BRUNEI
Companies CAP. 39 257
4. Every person whose name is entered as a member in the register
......_. of members shall, without payment, be entitled to a certificate under the seal of the company specifying the share or shares held by him and the amount paid up thereon, provided that in respect of a share or shares held jointly by several persons the company shall not be bound to issue more than one certificate, and delivery of a certificate for a share to one
of several joint holders shall be sufficient delivery to all.
5. If a share certificate is defaced, lost, or destroyed, it may be renewed on payment of such fee, if any, not exceeding $50, and on such terms, if any, as to evidence and indemnity, as the directors think fit.
6. No part of the funds of the company shall directly or indirectly be employed in the purchase of, or in loans upon the security of, the company's shares, but nothing in this regulation shall prohibit transac tions mentioned in the proviso to subsection (1) of section 48 of the Act.
LIEN
7. The company shall have a lien on every share (not being a fully paid share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of that share, and the company shall also have a lien on all shares (other than fully paid shares) standing registered in the name of a single person for all moneys presently pay able by him or his estate to the company; but the directors may at any time declare any share to be wholly or in part exempt from the provi sions of this regulation. The company's lien, if any, on a share extend to all dividends payable thereon.
8. The company may sell, in such manner as the directors think fit, any shares on which the company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable, nor until the expiration of 14 days after a notice in writing, stating and demanding, payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the share, or the person entitled thereto by reason of his death or bankruptcy.
9. For giving effect to any such sale the directors may authorise some person to transfer the shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase money, nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.
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10. The proceeds of the sale shall be received by the company and | - | |
applied in payment of such part of the amount in respect of which the | ||
lien exists as is presently payable, and the residue shall (subject to a like | ||
lien for sums not presently payable as existed upon the shares prior to | ||
the sale) be paid to the person entitled to the shares at the date of the |
sale.
CALLS ON SHARES
11. The directors may from time to time make calls upon the mem bers in respect of any moneys unpaid on their shares provided that no call shall exceed one-fourth of the nominal amount of the share, or be payable at less than one month from the last call; and each member shall (subject to receiving at least 14 days' notice specifying the time or times of payment) pay to the company at the time or times so specified the amount called on his shares.
12. The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof.
13. If a sum called in respect of a share is not paid before or on the day appointed for payment thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of $5 per cent per annum from the day appointed for the payment thereof to the time of the actual payment, but the directors shall be at liberty to waive payment of that interest wholly or in part.
14. The provisions of these regulations as to the liability of joint holders and as to payment of interest shall apply in the case of non payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the amount of the share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified.
15. The directors may make arrangements on the issue of shares for a difference between the holders in the amount of calls to be paid and in the times of payment.
16. The directors may, if they think fit, receive from any member willing to advance the same all or any part of the moneys uncalled and unpaid upon any shares held by him; and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding, without the sanction of the company in general meeting, 6 per cent) as may be agreed upon between the member paying the sum in advance and the directors.
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TRANSFER AND TRANSMISSION OF SHARES
17. The instrument of transfer of any share shall be executed by or on behalf of the transferor and transferee, and the transferor shall be deemed to remain a holder of the share until the name of the transferee is entered in the register of members in respect thereof.
18. Shares shall be transferred in the following form, or in any usual or common form which the directors shall approve -
I, A,B., of sum of $
, in consideration of the paid to me by C.D. of (hereinafter called the said transferee) do
hereby transfer to the said transferee the share [or shares]
numbered in the undertaking called the
Company, Berhad, to hold unto the
said transferee, subject to the several conditions on which I hold the same: and I, the said transferee, do hereby agree to take the said share [or shares] subject to the conditions aforesaid. As witness our hands the
day of
Witness to the signatures of, &c.
19. The directors may decline to register any transfer of shares, not being fully paid shares, to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. The directors may also suspend the registration of transfers during the 14 days immediately preceding the ordinary general meeting in each year. The directors may decline to reorganise any instrument of transfer unless
(a) a fee not exceeding one dollar is paid to the company in respect thereof, and
(b) the instrument of transfer is accompanied by the certi ficate of the shares to which it relates, and such other evi dence as the directors may reasonably require to show the right of the transferor to make the transfer.
If the directors refuse to register a transfer of any shares, they shall within 2 months after the date on which the transfer was lodged with the company send to the transferee notice of the refusal.
20. The legal personal representatives of a deceased sole holder of a share shall be the only persons recognised by the company as having any
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title to the share. In the case of a share registered in the names of 2 or more holders, the survivors or survivor, or the legal personal repre sentatives of the deceased survivor, shall be the only persons recognised by the company as having any title to the share.
21. Any person becoming entitled to a share in consequence of the death or bankruptcy of a member shall, upon such evidence being pro duced as may from time to time be properly required by the directors, have the right, either to be registered as a member in respect of the share or, instead of being registered himself, to make such transfer of the share as the deceased or bankrupt person could have made; but the directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by the deceased or bankrupt person before the death or bankruptcy.
22. A person becoming entitled to a share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the com pany.
FORFEITURE OF SHARES
23. If a member fails to pay any call or instalment or a call on the day appointed for payment thereof, the directors may, at any time thereaf ter during such time as any part of such call or instalment remains unpaid, serve a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.
24. The notice shall name a further day (not earlier than the expira tion of 14 days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the shares in respect of which the call was made will be liable to be forfeited.
25. If the requirements of any such notice as aforesaid are not com plied with, any share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the directors to that effect.
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26. A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the directors think fit.
27. A person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but notwithstanding, remain liable to pay to the company all moneys which, at the date of forfeiture, were presently payable by him to the company in respect of the shares, but his liability shall cease if and when the company receive payment in full of the nominal amount of the shares.
28. A statutory declaration in writing that the declarant is a director of the company, and that a share in the company has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the share. The company may receive the consideration, if any, given for the share on any sale or disposition thereof and may execute a transfer of the share in favour of the person to whom the share is sold or disposed of, and he shall thereupon be registered as the holder of the share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or dis posal of the share.
29. The provisions of these regulations as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the amount of the share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified.
CONVERSION OF SHARES INTO STOCK
30. The company may by ordinary resolution convert any paid-up shares into stock. and reconvert any stock into paid-up shares of any denomination.
31. The holders of stock may transfer the same, or any part thereof, in the same manner, and subject to the same regulations as, and subject to which, the shares from which the stock arose might previously to conversion have been transferred, or as near thereto as circumstances admit; but the directors may from time to time fix the minimum amount of stock transferable, and restrict or forbid the transfer of fractions of
. that minimum, but the minimum shall not exceed the nominal amount of the shares from which the stock arose.
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32. The holders of stock shall, according to the amount of the stock held by them, have the same rights, privileges, and advantages as re gards dividends, voting at meetings of the company, and other matters as if they held the shares from which the stock arose, but no such privilege or advantage (except participation in the dividends and profits of the company) shall be conferred by any such aliquot part of stock as would not, if existing in shares, have conferred that privilege or advan tage.
33. Such of the regulations of the company as are applicable to paid up shares shall apply to stock, and the words "share" and "shareholder" therein shall include "stock" and "stockholder".
ALTERATION OF CAPITAL
34. The company may from time to time by ordinary resolution in crease the share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe.
35. Subject to any direction to the contrary that may be given by the company in general meeting, all new shares shall, before issue, be offered to such persons as at the date of the offer are entitled to receive notices from the company of general meetings in proportion, as nearly as the circumstances admit, to the amount of the existing shares to which they are entitled. The offer shall be made by notice specifying the number of shares offered, and limiting a time within which the offer, if not accepted, will be deemed to be declined, and after the expiration of that time, or on the receipt of an intimation from the person to whom the offer is made that he declines to accept the shares offered, the directors may dispose of those shares in such manner as they think most beneficial to the company. The directors may likewise so dispose of any new shares which (by reason of the ratio which the new shares bear to shares held by persons entitled to an offer of new shares) cannot, in the opinion of the directors, be conveniently offered under this article.
36. The new shares shall be subject to the same provisions with refer ence to the payment of calls, in lien, transfer, transmission, forfeiture, and otherwise as the shares in the original share capital.
37. The company may by ordinary resolution-
(a) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;
LAWS OF BRUNEI
Companies CAP. 39 263
(b) sub-divide its existing shares, of any of them, into shares of smaller amount than is fixed by the memorandum of association subject, nevertheless, to the provisions of pa ragraph (d) of subsection (1) of section 53 of the Act;
(c) cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person.
38. The company may by special resolution reduce its share capital and any capital redemption reserve fund in any manner and with, and subject to, any incident authorised, and consent required, by law.
GENERAL MEETINGS
39. A general meeting shall be held once in every calendar year at such time (not being more than 15 months after the holding of the last preceding general meeting) and place as may be prescribed by the com pany in general meeting, or, in default, at such time in the third month following that in which the anniversary of the company's incorporation occurs, and at such place, as the directors shall appoint. In default of a general meeting being so held, a general meeting shall be held in the month next following, and may be convened by any 2 members in the same manner as nearly as possible as that in which meetings are to be convened by the directors.
40. The above-mentioned general meetings shall be called ordinary general meetings; all other general meetings shall be called extraordin ary general meetings.
41. The directors may, whenever they think fit, convene an extraor dinary general meeting, and extraordinary general meetings shall also be convened on such requisition, or, in default may be convened by such requisitionists, as provided by section 113 of the Act. If at any time there are not within Brunei sufficient directors capable of acting to form a quorum, any director or any 2 members of the company may convene an extraordinary general meeting in the same manner as nearly as possi ble as that in which meetings may be convened by the directors.
NOTICE OF GENERAL MEETINGS
··- 42. Subject to the provisions of subsection (2) of section 116 of the
Act relating to special resolutions, 7 days' notice at the least (exclusive
Tl B.L.R.O. 111984
LAWS OF BRUNEI
264 CAP. 39 Companies
of the day on which the notice is served or deemed to be served, but inclusive of the day for which notice is given) specifying the place, the day, and the hour of meeting and, in case of special business, the gener al nature of that business shall be given in manner hereinafter men tioned, or in such other manner, if any, as may be prescribed by the company in general meeting, to such persons as are, under the regula tions of the company, entitled to receive such notices from the com pany; but, with the consent of all the members entitled to receive notice of some particular meeting, that meeting may be convened by such shorter notice and in such manner as those members may think fit.
43. The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any member shall not invalidate the proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
44. All business shall be deemed special that is transacted at an ex traordinary meeting, and all that is transacted at an ordinary meeting, with the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, and the ordinary report of the directors and auditors, the election of directors and other officer in the place of those retiring by rotation, and the fixing of the remuneration of the auditors.
45. No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business; save as herein otherwise provided, 3 members personally pre sent shall be a quorum.
46. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the same day in the next week, at the same time and place, and, if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the members present shall be a quorum.
47. The chairman, if any, of the board of directors shall preside as chairman at every general meeting of the company.
48. If there is no such chairman, or if at any meeting he is not present within 15 minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the members present shall choose some one of their number to be chairman.
LAWS OF BRUNEI
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49. The chairman may, with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for 10 days or more, notice of the ad journed meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meet ing.
50. At any general meeting a resolution put to the vote of the meet ing shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by at least 3 members present in person or by proxy entitled to vote or by one member or 2 members so present and entitled, if that member or those 2 members together hold not less than 15 per cent of the paid up capital of the company, and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the company, shall be conclusive evidence of the fact, without proof of the number of propor tion of the votes recorded in favour of, or against, that resolution.
51. If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the results of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.
52. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.
53. A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs.
VOTES OF MEMBERS
54. On a show of hands every member present in person shall have one vote. On a poll every member shall have one vote for each share of which he is the holder.
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55. In the case of joint holders the vote of the senior who tenders a -
vote, whether in person or by proxy, shall be accepted to the exclusion
of the votes of the other joint holders; and for this purpose seniority shall be determined by the order in which the names stand in the register of members.
56. A member of unsound mind, or in respect of whom an order has been made by any Court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee, curator bonis, or other person in the nature of a committee or curator bonis appointed by that Court, and any such committee, curator bonis, or other person may, on a poll, vote by proxy.
57. No member shall be entitled to vote at any general meeting unless all calls or other sums presently payable by him in respect of shares in the company have been paid.
58. On a poll votes may be given either personally or by proxy.
59. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation, either under seal, or under the hand of an officer or attorney duly authorised. A proxy need not be a member of the company.
60. The instrument appointing a proxy and the power of attorney or other authority, if any, under which it is signed or a notarially certified copy of that power or authority shall be deposited at the registered office of the company not less than 48 hours before the time for holding the meeting or adjourned meeting, at which the person named in the instrument proposes to vote, and in default the instrument of proxy shall not be treated as valid.
61. An instrument appointing a proxy may be in the following form, or any other form which the directors shall approve
l'l, , of of the
hereby appoint
Company, Berhad,
, being a member
Company, Berhad,
'of
, as my proxy, to vote for me and
on my behalf at the [ordinary or extraordinary, as the case may be] general meeting of the company to be held on the
day of
LAWS OF BRUNEI
Companies CAP. 39 267
and at any adjournment thereof."
Signed this day of
62. The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
CORPORATIONS ACfiNG BY REPRESENTATIVES AT MEETINGS
63. Any corporation which is a member of the company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company or of any class of members of the company, and the person so autho rised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual member of the company.
DIRECfORS
64. The number of the directors and the names of the first directors shall be determined in writing by a majority of the subscribers of the memorandum of association.
65. The remuneration of the directors shall from time to time be determined by the company in general meeting.
66. The qualification of a director shall be the holding of at least one share in the company.
POWERS AND DUTIES OF DIREC!ORS
67. The business of the company shall be managed by the directors, who may pay all expenses incurred in getting up and registering the company, and may exercise all such powers of the company, as are not, by the Act, or by these articles, required to be exercised by the company in general meeting, subject, nevertheless, to any regulation of these articles, to the provisions of the Act, and to such regulations, being not inconsistent with the aforesaid regulations or provisions, as may be prescribed by the company in general meeting; but no regulation made by the company in general meeting shall invalidate any prior act of the directors which would have been valid if that regulation had not been made.
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68. The directors may from time to time appoint one or more of their body to the office of managing director or manager for such term and at such remuneration (whether by way of salary, or commission, or parti cipation in profits, or partly in one way and partly in another) as they may think fit, and a director so appointed shall not, while holding that office, be subject to retirement by rotation, or taken into account in determining the rotation of retirement of directors; but his appointment shall be subject to determination ipso facto if he ceases from any cause to be a director, or if the company in general meeting resolve that this tenure of the office of managing director or manager be determined.
69. The amount for the time being remammg undischarged of moneys borrowed or raised by the directors for the purposes of the company (otherwise than by the issue of share capital) shall not at any time exceed the issued share capital of the company without the sanc tion of the company in general meeting.
70. The directors shall cause minutes to be made in books provided for the purposes -
(a) of all appointments of offices made by the directors; (b) of the names of the directors present at each meeting
of the directors and of any committee of the directors;
(c) of all resolutions and proceedings at all meetings of the company; and of the directors, and of committees of direc tors;
and every director present at any meeting of directors or committee of directors shall sign his name in a book to be kept for that purpose.
THE SEAL
71. The seal of the company shall not be affixed to any instrument except by the authority of a resolution of the board of directors, and in the presence of a director and of the secretary or such other person as the directors may appoint for the purpose; and that director and the secretary or other person as aforesaid shall sign every instrument to which the seal of the company is so affixed in their presence.
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Companies CAP. 39 269
DISOUALIFICATION OF DIRECTORS
72. The office of director shall be vacated, if the director-
(a) ceases to be a director by virtue of section 140 of the
Act;
(b) without the consent of the company in general meet ing holds any other office of profit under the company except that of managing director or manager;
(c) becomes bankrupt;
(d) becomes prohibited from being a director by reason of any order made under section 208 or 260 of the Act;
(e) is found lunatic or becomes of unsound mind;
(f) resigns his office by notice in writing to the company;
or
(g) is directly or indirectly interested in any contract with the company or participates in the profits of any contract with the company;
Provided, however, that a director shall not vacate his office by reason of his being a member of any corporation which has entered into contracts with or done any work for the company if he shall have de clared the nature of his interest in manner required by section 147 of the Act, but the director shall not vote in respect of any such contract or work or any matter arising thereout, and if he does so vote his vote shall . not be counted.
ROTATION OF DIRECTORS
73. At the first ordinary general meeting of the company the whole of the directors shall retire from office, and at the ordinary general meeting in every subsequent year one-third of the directors for the time being, or, if their number is not 3 or a multiple of 3, then the number nearest one-third, shall retire from office.
74. The directors to retire in every year shall be those who have been longest in office since their last election but as between persons who became directors on the same day those to retire shall (unless they otherwise agree among themselves) be determined by lot.
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75. A retiring director shall be eligible for re-election. -
76. The company at the general meeting at which a director retires in manner aforesaid may fill up the vacated office by electing a person thereto and in default the retiring director shall be deemed to have been re-elected unless at such meeting it is resolved not to fill up such vacated office.
77. The company may from time to time in general meeting increase or reduce the number of directors, and may also determine in what rotation the increased or reduced number is to go out of office.
78. Any casual vacancy occurring in the board of directors may be filled up by the directors, but the person so chosen shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.
79. The directors shall have power at any time, and from time to time, to appoint a person as an additional director who shall retire from office at the next following ordinary general meeting, but shall be eligi ble for election by the company at that meeting as an additional direc tor.
80. The company may by extraordinary resolution remove any direc tor before the expiration of his period of office, and may by an ordinary resolution appoint another person in his stead. The person so appointed shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.
PROCEEDINGS OF DIRECTORS
81. The directors may meet together for the despatch of business, adjourn, and otherwise regulate their meetings, as they think fit. Ques tions arising at any meeting shall be decided by a majority of votes. In ease of an equality of votes the chairman shall have a second or casting vote. A director may, and the secretary on the requisition of a director shall, at any time summon a meeting of the directors.
82. The quorum necessary for the transaction of the business of the directors may be fixed by the directors, and unless so fixed shall when the number of directors exceeds 3 be 3, and when the number of direc tors does not exceed 3, be 2.
LAWS OF BRUNEI
Companies CAP. 39 271
83. The continuing directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the regulations of the company as the necessary quorum of directors, the continuing directors may act for the purpose of increasing the number of directors to that number, or of summoning a general meeting of the company, but for no other pur pose.
84. The directors may elect a chairman of their meetings and deter mine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within 5 mi nutes after the time appointed for holding the same, the directors pre sent may choose one of their number to be chairman of the meeting.
85. The directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall in the exercise of the powers so dele gated conform to any regulations that may be imposed on it by the directors.
86. A committee may elect a chairman of its meetings; if no such chairman is elected, or if at any meeting the chairman is not present within 5 minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting.
87. A committee may meet and adjourn as it thinks proper. Ques tions arising at any meeting shall be determined by a majority of votes of the members present, and in case of an equality of votes the chairman shall have a second or casting vote.
88. All acts done by any meeting of the directors or of a committee of directors, or by any person acting as a director, shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director.
DIVIDENDS AND RESERVE
89. The company in general meeting may declare dividends, but no dividend shall exceed the amount recommended by the directors.
90. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the company.
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272 CAP. 39 Companies
91. No dividend shall be paid otherwise than out of profits. -
92. Subject to the rights of persons, if any, entitled to shares with special rights as to dividends, all dividends shall be declared and paid according to the amounts paid on the shares, but if and so long as nothing is paid up on any of the shares in the company dividends may be declared and paid according to the amounts of the shares. No amount paid on a share in advance of calls shall, while carrying interest, be treated for the purposes of this article as paid on the share.
93. The directors may, before recommending any dividend, set aside out of the profits of the company such sums as they think proper as a reserve or reserves which shall, at the discretion of the directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the company may be properly applied, and pending such application may, at the like discretion, either be employed in the business of the company or be invested in such investments (other than shares of the company) as the directors may from time to time think fit.
94. If several persons are registered as joint holders of any share, any one of them may give effectual receipts for any dividend or other moneys payable on or in respect of the share.
95. Any dividend may be paid by cheque or warrant sent through the post to the registered address of the member or person entitled thereto or in the case of joint holders to any one of such joint holders at his registered address or to such person and such address as the member or person entitled or such joi.nt holders as the case may be may direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent or to the order of such other person as the member or person entitled or such joint holders as the case may be may direct.
96. No dividend shall bear interest against the company.
fJ7. The directors shall cause proper books of account to be kept with respect to
all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;
all sales and purchases of goods by the company; and the assets and liabilities of the company.
LAWS OF BRUNEI
Companies CAP. 39 273
98. The books of account shall be kept at the registered office of the company, or at such other place or places as the directors think fit, and shall always be open to the inspection of the directors.
99. The directors shall from time to time detemine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the company or any of them shall be open to the inspection of members not being directors, and no mem ber (not being a director) shall have any right of inspecting any account or book or document of the company except as conferred by statute or authorised by the directors or by the company in general meeting.
100. The directors shall from time to time in accordance with section
122 of the Act, cause to be prepared and to be laid before the company in general meeting such profit and loss accounts, balance sheets and reports as are referred to in that section.
101. A copy of every balance sheet (including every document re quired by law to be annexed thereto) which is to be laid before the company in general meeting together with a copy of the auditors' report shall not less than 7 days before the date of the meeting be sent to all persons entitled to receive notices of general meetings of the company.
AUDIT
102. Auditors shall be appointed and their duties regulated in accord
ance with sections 131, 132 and 133 of the Act.
NOTICES
103. A notice may be given by the company to any member either personally or by sending it by post to him to his registered address, or (if he has no registered address within Brunei) to the address, if any, within Brunei supplied by him to the company for the giving of notices to him.
Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice, and to have been effected in the case of a notice of a meeting at the expiration of 24 hours after the letter containing the same is posted, and in any other case at the time at which the letter would be delivered in the ordinary course of post.
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104. If a member has no registered address within Brunei and has not supplied to the company an address within Brunei for the giving of notices to him, a.notice addressed to him and advertised in the Gazette, shall be deemed to be duly given to him at noon on the day on which the advertisement appears.
105. A notice may be given by the company to the joint holders of a share by giving the notice to the joint holder named first in the register of members in respect of the share.
106. A notice may be given by the company of the persons entitled to a share in consequence of the death or bankruptcy of a member by send ing it through the post in a prepaid letter addressed to them by name, or by the title of representatives of the deceased, or trustee of the bank rupt, or by any like description, at the address, if any, within Brunei supplied for the purpose by the persons claiming to be so entitled, or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or bank ruptcy had not occurred.
107. Notice of every general meeting shall be given in some manner hereinbefore authorised to (a) every member except those members who (having no registered address within Brunei) have not supplied to the company an address within Brunei for the giving of notices to them, and also to (b) every person entitled to a share in consequence of the death or bankruptcy of a member, who, but for his death or bankruptcy, would be entitled to receive notice of the meeting. No other persons shall be entitled to receive notices of general meetings.
LAWS OF BRUNEI
Companies CAP. 39 275
TABLEB
FORM OF MEMORANDUM OF ASSOCIATION OF A COMPANY LIMITED BY SHARES
1st. The name of the company is "Syarikat Pelayaran Timor, Berhad".
2nd. The registered office of the company will be situate in "Ban
dar Seri Begawan."
3rd. The objects for which the company is established are,
"the conveyance of passengers and goods in ships or boats between such places as the company may from time to time determine, and the doing all such other things as are incidental or conducive to the attainment of the above object."
4th. The liability of the members is limited.
5th. The share capital of the company is $200,000 divided into
1,000 shares of $200 each.
WE, the several persons whose names and addresses are subscribed, are desirous of being formed into a company, in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names.
[ss. 14 and
323]
Names, Addresses, and Descriptions of Subscribers
"L Ahmad bin Bakar .............. merchant
2. Mohammad bin Daud ..... .... merchant
3. Ali bin Yassin ....... ............ merchant
4. Wong Ah Bee ................... merchant
5. Bakar bin Ali .................... merchant
6. Daud bin Ahmad ............... merchant
7. Yassin bin Mohammad ..... ... merchant
Number of shares taken by each Subscriber
200
25
30
40
15
5
10
Total shares taken 325"
Dated the day of 19
Witness to the above signatures,
A.B. No. 13 Jalan Sultan, Bandar Seri Begawan
B.L.R.O. 111984
LAWS OF BRUNEI
276
[ss.
14
and
323]
TABLEC -
FORM OF MEMORANDUM AND ARTICLES OF ASSOCIATION OF A COMPANY LIMITED BY GUARANTEE, AND NOT HAVING A SHARE CAPITAL
MEMORANDUM OF ASSOCIATION
1st. The name of the company is "The Brunei School Association, Berhad".
2nd. The registered office of the company will be situate in "Ban
dar Seri Begawan."
3rd. The objects for which the company is established are the carrying on a school for boys in Brunei and the doing all such other things as are incidental or conducive to the attainment of the above object.
4th. The liability of the members is limited.
5th. Every member of the company undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and the costs charges and expenses of winding up, and for the adjust ment of the rights of the contributories among themselves, such amount as may be required not exceeding $100.
WE, the several persons whose names and addresses are subscribed, are desirous of being formed into a company, in pursuance of this memorandum of association.
Names, Addresses, and Descriptions of Subscribers
"1. Ahmad bin Bakar ................................. schoolmaster
2. Mohammad bin Daud ............................. schoolmaster
3. Ali bin Yassin ....................................... schoolmaster
4. Wong Ah Bee .... ................................... schoolmaster
5. Bakar bin Ali ............ ............... . . ... ........ schoolmaster
6. Daud bin Ahmad ....... ........... ............... schoolmaster
7. Yassin bin Mohammad ........................... schoolmaster
Dated the day of 19
Witness to the above signatures,
A.B. No. 13 Jalan Sultan, Bandar Seri Begawan
LAWS OF BRUNEI
Companies CAP. 39 277
ARTICLES OF ASSOCIATION TO ACCOMPANY PRECEDING MEMORANDUM OF ASSOCIATION
PRELIMINARY
1. In these regulations -
"the Act" means the Companies Act.
When any provision of the Act is referred to the reference is to such provision as modified by any Act for the time being in force.
Unless the context otherwise requires, expressions defined in the Act or any statutory modification thereof in force at the date at which these regulations become binding on the company, shall have meanings so defined.
MEMBERS
2. The number of members with which the company proposes to be registered is 500, but the directors may from time to time register an increase of members.
3. The subscribers to the memorandum of association and such other persons as the directors shall admit to membership shall be mem bers of the company.
GENERAL MEETINGS
4. The first general meeting shall be held at such time, not being less than one month nor more than 3 months after the incorporation of the company, and at such place, as the directors may determine.
5. A general meeting shall be held once in every calendar year at such time (not being more than 15 months after the holding of the last preceding general meeting) and place as may be prescribed by the com pany in general meeting, or, in default, at such time in the third month following that in which the anniversary of the company's incorporation occurs, and at such place as the directors shall appoint. In default of a general meeting being so held, a general meeting shall be held in the month next following, and may be convened by any 2 members in the same manner as nearly as possible as that in which meetings are to be convened by the directors.
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6. The above-mentioned general meetings shall be called ordinary general meetings; all other general meetings shall be called extraordin ary general meetings.
7. The directors may, whenever they think fit, convene an extraor dinary general meeting and extraordinary general meetings shall also be convened on such requisition, or, in default, may be convened by such requisitionists, as provided by section 113 of the Act. If at any time there are not within Brunei sufficient directors capable of acting to form a quorum, any director or any 2 members of the company may convene an extraordinary general meeting in the same manner as nearly as possi ble as that in which meetings may be convened by the directors.
NOTICE OF GENERAL MEETINGS
8. Subject to the provisions of section 116 (2) of the Act relatinto special resolutions, 7 days' notice at the least (exclusive of the day -on which the notice is served or deemed to be served, but inclusive of the day for which notice is given) specifying the place, the day, and the hour of meeting and, in case of special business, the general nature of that business shall be given in manner hereinafter mentioned, or in such other manner, if any, as may be prescribed by the company in general meeting, to such persons as are, under the regulations of the company, entitled to receive such notices from the company; but, with the consent of all the members entitled to receive notice of some particular meeting, that meeting may be convened by such shorter notice and in such man ner as those members may think fit.
9. The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any member shall not invalidate the proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
10. All business shall be deemed special that is transacted at an ex traordinary meeting, and all that is transacted at an ordinary meeting, with the exception of the consideration of the accounts, balance sheets, and the ordinary report of the directors and auditors, the election of directors and other officers in the place of those retiring by rotation, and the fixing of the remuneration of the auditors.
11. No business shall be transacted at any general meeting unless a quorum of members is presented at the time when the meeting proceeds
LAWS OF BRUNEI
Companies CAP. 39 279
to business; save as herein otherwise provided, 3 members personally present shall be a quorum.
12. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting the members present shall be a quorum.
13. The chairman, if any, of the board of directors shall preside as chairman at every general meeting of the company.
14. If there is no such chairman, or if at any meeting he is not present within 15 minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the members present shall choose some one of their number to be chairman.
15. The chairman may, with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for 10 days or more, notice of the ad journed meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meet ing.
16. At any general meeting a resolution put to the vote of the meet ing shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by at least 2 members present in person or by proxy entitled to vote and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution.
17. If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.
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18. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting, at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.
19. A poll demanded on the election of a chairman, or on a question of adjournment, shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meet ing directs.
VOTES OF MEMBERS
20. Every member shall have one vote.
21. A member of unsound mind, or in respect of whom an order has been made by any Court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee, curator bonis, or other person in the nature of a committee or curator bonis appointed by that Court, and any such committee, curator bonis, or other person may, on a poll, vote by proxy.
22. No member shall be entitled to vote at any general meeting unless all moneys presently payable by him to the company have been paid.
23. On a poll votes may be given either personally or by proxy.
24. The instrument appointing a proxy shall be in writing under the hand of the appointer or of his attorney duly authorised in writing, or, if the appointer is a corporation, either under the seal or under the hand of an officer or attorney so authorised. A proxy need not be a member of the company.
25. The instrument appointing a proxy and the power of attorney or other authority, if any, under which it is signed or a notarially certified copy of that power or authority shall be deposited at the registered office of the company not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote, and in default the instrument of proxy shall not be treated as valid.
26. The instrument appointing a proxy may be in the following form, or any other form which the directors shall approve -
LAWS OF BRUNEI
Companies CAP. 39 281
Company, Berhad
"1
of
being a member of the Company, Berhad, hereby appoint of as my proxy to vote for me and on my
behalf at the [ordinary or extraordinary, as the case may be] general meeting of the company to be held on the day of and at
any adjournment thereof."
Signed this day of
27. The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
28. Any corporation which is a member of the company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that cor poration could exercise if it were an individual member of the company.
DIRECTORS
29. The number of directors and the names of the first directors shall be determined in writing by a majority of the subscribers to the memor andum.
30. The remuneration of the directors shall from time to time be determined by the company in general meeting.
POWERS AND DUTIES OF-DIRECTORS
31. The business of the company shall be managed by the directors, who may pay all expenses incurred in getting up and registering the company, and may exercise all such powers of the company as are not by the Act, or by these articles required to be exercised by the company in general meeting, subject nevertheless to any regulation of these arti cles, to the provisions of the Act, and to such regulations, being not
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inconsistent with the aforesaid regulations or provisions, as may be prescribed by the company in general meeting; but no regulation made by the company in general meeting shall invalidate any prior act of the directors which would have been valid if that regulation had not been made.
32. The directors shall cause minutes to be made in books provided for the purpose -
(a) of all appointments of officers made by the directors;
(b) of the names of the directors present at each meeting of the directors and of any committee of the directors;
(c) of all resolutions and proceedings at all meetings of the company, and of the directors, and of committees of direc tors;
and every director present at any meeting of directors or committee of directors shall sign his name in a book to be kept for that purpose.
THE SEAL
33. The seal of the company shall not be affixed to any instrument except by the authority of a resolution of the board of directors, and in the presence of a director and of the secretary or such other person as the directors may appoint for the purpose; and that director and the secretary or other person as aforesaid shall sign every instrument to which the seal of the company is so affixed in their presence.
DISQUALIFICATIONS OF DIRECTORS
34. The office of director shall be vacated, if the director-
(a) without the consent of the company in general meeting holds any other office or profit under the company;
(b) becomes bankrupt;
(c) becomes prohibited from being a director by reason of any order made under section 208 or 260 of the Act;
(d) is found lunatic or becomes of unsound mind;
LAWS OF BRUNEI
Companies CAP. 39 283
(e) resigns his office by notice in writing to the company;
or
(f) is directly or indirectly interested in any contract with the company and fails to declare the nature of his interest in manner required by section 147 of the Act.
A director shall not vote in respect of any contract in which he is interested or any matter arising thereout, and if he does so vote his vote shall not be counted.
ROTATION OF DIRECTORS
35. At the first ordinary general meeting of the company the whole of the directors shall retire from office, and at the ordinary general meeting in every subsequent year one-third of the directors for the time being, or, if their number is not 3 or a multiple of 3, then the number nearest one-third, shall retire from office.
36. The directors to retire in every year shall be those who have been longest in office since their last election but as between persons who became directors on the same day those to retire shall (unless they otherwise agree among themselves) be determined by lot.
37. A retiring director shall be eligible for re-election.
38. The company at the general meeting at which a director retires in manner aforesaid may fill up the vacated office by electing a person thereto and in default the retiring director shall be deemed to have been re-elected unless at such meeting it is resolved not to fill up such vacated office.
39. The company may from time to time in general meeting increase or reduce the number of directors, and may also determine in what rotation the increased or reduced number is to go out of office.
40. Any casual vacancy occurring in the board of directors may be filled up by the directors but the person so chosen shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.
41. The directors shall have power at any time, and from time to time, to appoint a person as an additional director who shall retire from
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284 CAP. 39 Companies
office at the next following ordinary general meeting, but shall be eligi ble for election by the company at that meeting as an additional direc tor.
42. The company may by extraordinary resolution remove any direc tor before the expiration of his period of office, and may by an ordinary resolution appoint another person in his stead. The person so appointed shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.
PROCEEDINGS OF DIRECTORS
43. The directors may meet together for the despatch of business, adjourn, and otherwise regulate their meetings, as they think fit. Ques tions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes the chairman shall have a second or casting vote. A director may, and the secretary on the requisition of a director shall, at any time summon a meeting of the directors.
44. The quorum necessary for the transaction of the business of the directors may be fixed by the directors, and unless so fixed shall, when the number of directors exceeds 3, be 3 and shall, when the number of directors does not exceed 3, be 2.
45. The continuing directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the regulations of the company as the necessary quorum of directors, the continuing directors may act for the purpose of increasing the number of directors to that number, or of summoning a general meeting of the company, but for no other pur pose.
46. The directors may elect a chairman of their meetings and deter mine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within 5 mi nutes after the time appointed for holding the same, the directors pre sent may choose one of their number to be chairman of the meeting.
47. The directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall in the exercise of the powers so dele gated, conform to any regulations that may be imposed on them by the directors.
LAWS OF BRUNEI
Companies CAP. 39 285
48. A committee may elect a chairman of its meetings; if no such chairman is elected, or if at any meeting the chairman is not present within 5 minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting.
49. A committee may meet and adjourn as it thinks proper. Ques tions arising at any meeting shall be determined by a majority of votes of the members present, and in case of an equality for votes the chairman shall have a second or casting vote.
50. All acts done by any meeting of the directors or of a committee of directors, or by any person acting as a director, shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director.
ACCOUNTS
51. The directors shall cause proper books of account to be kept with respect to-
all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;
all sales and purchases of goods by the company; and the assets and liabilities of the company.
52. The books of account shall be kept at the registered office of the company, or at such other place or places as the directors think fit, and shall always be open to the inspection of the directors.
53. The directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the company or any of them shall be open to the inspection of members not being directors, and no mem ber (not being a director) shall have any right of inspecting any account or book or document of the company except as conferred by statute or authorised by the directors or by the company in general meeting.
54. The directors shall from time to time in accordance with section
122 of the Act, cause to be prepared and to be laid before the company in general meeting such profit and loss accounts, balance sheets and reports as are referred to in that section.
B.L.R.O.J/1984
LAWS OF BRUNEI
286 CAP. 39 Companies
55. A copy of every balance sheet (including every document re quired by law to be annexed thereto) which is to be laid before the company in general meeting together with a copy of the auditors' report shall not less than 7 days before the date of the meeting be sent to all persons entitled to receive notices of general meetings of the company.
AUDIT -.
56. Auditors shall be appointed and their duties regulated in accord
ance with sections 131, 132 and 133 of the Act.
NOTICES
57. A notice may be given by the company to any member either personally or by sending it by post to him to his registered address, or (if he has no registered address within Brunei) to the address, if any, within Brunei supplied by him to the company for the giving of notices to him.
Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice, and to have been effected at the expiration of 24 hours after the letter containing the same was posted.
58. If a member has no registered address within Brunei and has not supplied to the company an address within Brunei for the giving of notices to him, a notice addressed to him and advertised in the Gazette, shall be deemed to be duly given to him on the day on which the advertisement appears.
59. Notice of every general meeting shall be given in some manner hereinbefore authorised to every member except those members who (having no registered address within Brunei) have not supplied to the company an address within Brunei for the giving of notices to them. No other persons shall be entitled to receive notices of general meetings.
Names, Addresses and Descriptions of Subscribers
"1. Ahmad bin Bakar ...................................... schoolmaster
2. Mohammad bin Daud ................................ schoolmaster
3. Ali bin Yassin ........................................... schoolmaster
4. Wong Ah Bee ........................................... schoolmaster
5. Bakar bin Ali ........................................... schoolmaster
6. Daud bin Ahmad ...................................... schoolmaster
7. Yassin bin Mohammad ............................... schoolmaster
LAWS OF BRUNEI
Companies CAP. 39 287
Dated the day of 19 "
Witness to the above signatures,
A. B. No. 13 ]alan Sultan, Bandar Seri Begawan
TABLED
MEMORANDUM AND ARTICLES OF ASSOCIATION OF A COMPANY LIMITED BY GUARANTEE, AND HAVING A SHARE CAPITAL
MEMORANDUM OF ASSOCIATION
1st. The name of the company is "Syarikat Hotel Moden, Berhad".
2nd. The registered office of the company will be situate in "Ban
dar Seri Begawan".
3rd. The objects for which the company is established are "the facilitating of travel in Brunei by providing hotels and conveyances by sea and by land for the accommodation of travellers, and. the doing all such other things as are incidental or conducive to the attainment of the above object."
4th. The liability of the members is limited.
5th. Every member of the company undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year afterwards, for payment of the debts and liabilities of the company, contracted before he ceases to be a member, and the costs, charges and expenses of winding up the same and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding $200.
6th. The share capital of the company shall consist of $500,000, divided into 5,000 shares of $100 each.
WE, the several persons whose names and addresses are subscribed, are desirous of being formed into a company, in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names.
[ss. 14 and
323]
B.L.R.O.lll984
LAWS OF BRUNEI
288 CAP. 39 Companies
Names, Addresses, and Descriptions of Subscribers
"1. Ahmad bin Bakar .............. merchant
2. Mohammad bin Daud ......... merchant
3. Ali bin Yassin ................... merchant
4. Wong Ah Bee ................... merchant
5. Bakar bin Ali ................. . .. merchant
6. Daud bin Ahmad ............. .. merchant
7. Yassin bin Mohammad ....... . merchant
Number of Shares taken by each Subscriber
200
25
30
40
15
5
10
Total Shares taken 325"
Dated the day of 19
Witness to the above signatures,
A. B. No. 13 ]alan Sultan, Bandar Seri Begawan
ARTICLES OF ASSOCIATION TO ACCOMPANY PRECEDING MEMORANDUM OF ASSOCIATION
1. The Articles of Table A set out in the First Schedule to the Companies Act, Cap. 39, shall be the articles of association of the com pany and apply to the company.
Names, Addresses, and Descriptions of Subscribers
"1. Ahmad bin Bakar ........................................... merchant
2. Mohammad bin Daud .... ...... ............................ merchant
3. Ali bin Yassin ................................................ merchant
4. Wong Ah Bee .............. .................................. merchant
5. Bakar bin Ali ................................................. merchant
6. Daud bin Ahmad ............................................ merchant
7. Yassin bin Mohammad ...... ............................. merchant
Dated the day of 19
Witness to the above signatures,
A.B. No. 13 Jalan Sultan, Bandar Seri Begawan
LAWS OF BRUNEI
Companies CAP. 39 289
TABLEE
MEMORANDUM AND ARTICLES OF ASSOCIATION OF AN UNLIMITED COMPANY HAVING A SHARE CAPITAL
MEMORANDUM OF ASSOCIATION
1st. The name of the company is "The Patent Stereotype Com
pany".
2nd. The registered office of the company will be situate in "Ban
dar Seri Begawan".
3rd. The objects for which the company is established are "the working of a patent method of founding and casting stereotype plates of which method Mohammad bin Daud of Bandar Seri Begawan, is the sole patentee, and the doing of all such things as are incidental or conducive to the attainment of the above object".
WE, the several persons whose names are subscribed, are desirous of being formed into a company, in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names.
Number of
Names, Addresses and Descriptions Shares taken of Subscribers by each
Subscriber
"1. Ahmad bin Bakar .............. merchant 3
2. Mohammad bin Daud ········· merchant 2
3. Ali bin Yassin •• • 0 •••••••• 0 •••••• merchant 1
4. WongAhBee ••••• 0 • ••••••••••• merchant 2
5. Bakar bin Ali .................... merchant 2
6. Daud bin Ahmad ............... merchant 1
7. Yassin bin Mohammad ........ merchant 1
Total Shares taken 12"
fss. 14 and
323)
Dated the day of 19
Witness to the above signatures,
- A.B. No. 13 Jalan Sultan, Bandar Seri Begawan
B.LR.O. 111984
LAWS OF BRUNEI
290 CAP. 39 Companies
ARTICLES OF ASSOCIATION TO ACCOMPANY THE -
PRECEDING MEMORANDUM OF ASSOCIATION
1. The share capital of the company is $2,000 divided into 20 shares of $100 each.
2. The company may by special resolution -
(a) increase the share capital by such sum to be divided into shares of such amount as the resolution may prescribe;
(b) consolidate its shares into shares of a larger amount than its existing shares;
(c) sub-divide its shares into shares of a smaller amount than its existing shares;
(d) cancel any shares which at he date of the passing of the resolution have not been taken or agreed to be taken by any person;
(e) reduce its share capital in any way.
3. The Articles of Table A set out in the First Schedule to the
Companies Act, Cap. 39, (other than Articles 30, 31, 32, 33, 34, 37, and
38) shall be deemed to be incorporated with these articles and shall apply to the company.
Names, Addresses, and Descriptions of Subscribers
"1. Ahmad bin Bakar ........................................... merchant
2. Mohammad bin Daud ...................................... merchant
3. Ali bin Yassin ................................................ merchant
4. Wong Ah Bee ................................................ merchant
5. Bakar bin Ali ................................................. merchant
6. Daud bin Ahmad .....0 0 ....0 0............................... merchant
7. Yassin bin Mohammad .................................... merchant
Dated the day of 19 "
Witness to the above signatures,
A.B. No. 13 Jalan Sultan, Bandar Seri Begawan
LAWS OF BRUNEI
Companies CAP. 39 291
SECOND SCHEDULE
FORM OF STATEMENT IN LIEU OF PROSPECTUS TO BE DELIVERED TO REGISTRAR BY A PRIVATE COMPANY ON BECOMING A PUBLIC COMPANY
COMPANIES ACT, CAP. 39
Statement in lieu of Prospectus delivered for registration by
[Insert the name of the Company]
Pursuant to section 30 of the Companies Act. Delivered for registra
tion by
[s. 30]
The nominal share capital of the Company. Divided into .......................................
Amount (if any) of above capital which con
sists of redeemable preference shares.
The date on or before which these shares are, or are liable, to be redeemed.
Names, descriptions and addresses of direc
tors or proposed directors.
Amount of shares issued ........................ Amount of commissions paid in connexion
therewith.
Amount of discount, if any, allowed on the issue of any shares, or so much thereof as has not been written off at the date of the statement.
Unless more than one year has elapsed since the date on which the company was enti tled to commence business -
Amount of preliminary expenses ...... .
$
Shares of$ Shares of$ Shares of$ Shares of$
Shares
$
each each each each
Amount paid to any promoter .......... .
Consideration for the payment ..........
If the share capital of the Company is di
vided into different classes of shares the
Name of promoter
Amount$
Consideration -
B.L.R.O.l/1984
LAWS OF BRUNEI
292
right of voting at meetings of the Com pany conferred by, and the rights in re spect of capital and dividends attached to, the several classes of shares respectively.
Number and amount of shares and deben tures issued with the 2 years preceding the date of this statement as fully or partly paid up otherwise than for cash or agreed to be so issued at the date of this state ment.
Consideration for the issue of those shares or debentures.
Names and addresses of Vendors of Proper ty (1) purchased or acquired by the Com pany within the 2 years preceding the date of this statement or (2) agreed or prop osed to be purchased or acquired by the Company.
Amount (in cash, shares or debentures)
paid or payable to each separate vendor.
Amount paid or payable in cash, shares or debentures for any such property, specify ing the amount paid or payable for good wilL
Dates of, and parties to, every material con tract (other than contracts entered into in the or-dinary course of business or entered into more than 2 years before the delivery of this statement).
Time and place at which the contracts or copies thereof may be inspected.
Names and addresses of the auditors of the
Company.
Full particulars of the nature and extent of the interest of every director in any prop erty purchased or acquired by the Com pany within the 2 years preceding the date of this statement or proposed to be purch-
1. Shares of
$ fully paid
2. shares upon which$
per share credited
as paid
3. debenture
$
4. Consideration -
Total purchase price
$
Cash $ Shares $
Debentures $
Goodwill $
LAWS 01<' BRUNEI
Companies CAP. 39 293
ased or acquired by the Company or, where the interest of such a director con sists in being a partner in a firm, the na ture and extent of the interest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares, or otherwise, by any per son either to induce him to become or to qualify him as a director, or otherwise for services rendered or to be rendered to the Company by him or by the firm.
Rates of the dividends (if any) paid by the Company in respect of each class of shares in the Company in each of the 3 financial years immediately preceding the date of this statement or since the incor poration of the Company whichever period is the shorter.
Particulars of the cases in which no di vidends have been paid in respect of any class of shares in any of these years.
If any of the unissued shares or debentures are to be applied in the purchase of any business the amount, as certified by the persons by whom the accounts of the busi ness have been audited, of the net profits of the business in respect of each of the 3 financial years immediately preceding the date of this statement, provided that in the case of a business which has been car ried on for less than 3 years and the accounts of which have only been made up in respect of 2 years or one year the above requirement shall have effect as if references to 2 years or one year, as the case may be, were substituted for refer ences to 3 years, and in any such case the statement shall say how long the business to be acquired has been carried on.
(Signatures of the person above-named as directors or proposed directors or of their agents authorised in writing).
B.L.R.O. 111984
LAWS OF BRUNEI
294 CAP. 39 Companies
Date -
NOTE:-In this Form the expression "vendor" includes a vendor as defined in Part HI of the Fourth Schedule to this Act, and the expression "financial year" has the meaning assigned to it in that Part of the said Schedule.
LAWS OF BRUNEI
Companies CAP. 39 295
THIRD SCHEDULE
PART I
MATIERS REQUIRED TO BE STATED IN PROSPECTUS
1. Except where the prospectus is published as a newspaper adver tisement, the contents of the memorandum, with the names, descrip tions, and addresses of the signatories, and the number of shares sub scribed for by them respectively.
2. The number of founders or management or deferred shares, if any, and the nature and extent of the interest of the holders in the property and profits of the company.
3. The number of shares, if any, fixed by the articles as the qualifica tion of a director, and any provision in the articles as to the remunera tion of the directors.
4. The names, descriptions, and addresses of the directors or prop
osed directors.
5. Where shares are offered to the public for subscription particulars as to-
rss. 38 and
309]
(a) the mmtmum amount which, in the opinion of the directors, must be raised by the issue of those shares in order to provide the sums, or, if any part thereof is to be defrayed in any other manner, the balance of the sums required to be provided in respect of each of the following matters -
(i) the purchase price of any property purchased or to be purchased which is to be defrayed in whole or in part out of the proceeds of the issue;
(ii) any preliminary expenses payable by the company, and any commission so payable to any person in considera tion of his agreeing to subscribe for, or of his procuring or agreeing to procure subscriptions for, any shares in the company;
(iii) the repayment of any moneys borrowed by the com
pany in respect of any of the foregoing matters;
(iv) working capital; and
Ul B.L.R.O. 111984
LAWS OF BRUNEI
296 CAP. 39 Companies
(b) the amounts to be provided in respect of the matters aforesaid otherwise than out of the proceeds of the issue and the sources out of which those amounts are to be provided.
6. The amount payable on application and allotment on each share, and, in the case of a second or subsequent offer of shares, the amount offered for subscription on each previous allotment made within the 2 preceding years, the amount actually allotted, and the amount, if any, paid on the shares so allotted.
7. The number and amount of shares and debentures which within the 2 preceding years have been issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which those shares or debentures have been issued or are proposed or intended to be issued.
8. The names and addresses of the vendors of any property purch ased or acquired by the company, or proposed so to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus, or the purchase or acquisition of which has not been completed at the date of issue of the prospectus, and the amount payable in cash, shares, or debentures, to the vendor, and where there is more than one separate vendor, or the company is a sub-purchaser, the amount so payable to each vendor.
9. The amount, if any, paid or payable as purchase money in cash, shares, or debentures, for any such property as aforesaid, specifying the amount, if any, payable for goodwill.
10.. The amount, if any, paid within the 2 preceding years, or pay able, as commission (but not including commission to sub-underwriters) for subscribing or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for any shares in, or debentures of, the company, or the rate of any such commission.
11. The amount or estimated amount of preliminary expenses.
12. The amount paid within the 2 preceding years or intended to be paid to any promoter, and the consideration for any such payment.
13. The dates of and parties to every material contract, not being a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company or a contract entered into more than 2 years before the date of issue of the prospectus, and a
LAWS OF BRUNEI
Companies CAP. 39 297
reasonable time and place at which any such material contract or a copy thereof may be inspected.
14. The names and addresses ofthe auditors, if any, of the company.
15. Full particulars of the nature and extent of the interest, if any, of every director in the promotion of, or in the property proposed to be acquired by, the company, or, where the interest of such a director consists in being a partner in a firm, the nature and extent of the interest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any person either to induce him to become, or to qualify him as a director, or, otherwise for services rendered by him or by the firm in connexion with the promotion or formation of the company.
16. If the prospectus invites the public to subscribe for shares in the company and the share capital of the company is divided into different classes of shares, the right of voting at meetings of the company confer red by, and the rights in respect of capital and dividends attached to, the several classes of shares respectively.
17. In the case of a company which has been carrying on business, or of a business which has been carried on for less than 3 years, the length of time during which the business of the company or the business to be acquired, as the case may be, has been carried on.
PART II
REPORTS TO BE SET OUT IN PROSPECTUS
1. A report by the auditors of the company with respect to the profits of the company in respect of each of the 3 financial years im mediately preceding the issue of the prospectus, and with respect to the rates of the dividends, if any, paid by the company in respect of each class of shares in the company in respect of each of the said 3 years, giving particulars of each such class of shares on which such dividends have been paid and particulars of the cases in which no dividends have been paid in respect of any class of shares in respect of any of those years, and, if no accounts have been made up in respect of any part of the period of 3 years ending on a date 3 months before the issue of the prospectus, containing,a statement of that fact.
2. If the proceeds, or any part of the proceeds, of the issue of the shares or debentures are or is to be applied directly or indirectly in the
B.L.R.O. 111984
LAWS OF BRUNEI
298 CAP. 39 Companies
purchase of any business, a report made by accountants who shall be named in the prospectus upon the profits of the business in respect of each of the 3 financial years immediately preceding the issue of the prospectus.
PART III
PROVISIONS APPLYING TO PARTS I AND II OF SCHEDULE -
1. The provisions of this Schedule with respect to the memorandum and the qualification. remuneration and interest of directors. the names, descriptions and addresses of directors or proposed directors, and the amount or estimated amount of the preliminary expenses, shall not apply in the case of a prospectus issued more than 2 years after the date at which the company is entitled to commence business.
2. Every person shall for the purposes of this Schedule be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the company, in any case where -
(a) the purchase money is not fully paid at the date of the issue of the prospectus;
(b) the purchase money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscrip tion by the prospectus;
(c) the contract depends for its validity or fulfilment on the result of that issue.
3. Where any property to be acquired by the company is to be taken on lease, this Schedule shall have effect as if the expression "vendor" included the lessor, and the expression "purchase money" included the consideration for the lease, and the expression "sub-purchaser" in cluded a sub-lessee.
4. For the purposes of paragraph 8 of Part I of this Schedule where the vendors or any of them are a firm, the members of the firm shall not be treated as separate vendors.
5. If in the case of a company which has been
'·
carrying
on business,
or of a business which has been carried on for less than 3 years, the accounts of the company or business have only been made up in respect
LAWS OF BRUNEI
Companies CAP. 39 299
of 2 years or one year, Part II of this Schedlule shall have effect as if references to 2 years or one year as the case may be, were substituted for references to 3 years.
6. The expression "financial year" in Part II of this Schedule means the year in respect of which the accounts of the company or of the business, as the case may be, are made up, and where by reason of any alteration of the date on which the financial year of the company or business terminates the accounts of the company or business have been made up for a period greater or less than a year, that greater or less period shall for the purpose of the said Part of this Schedule be deemed to be a financial year.
-
B.L.R.O.l/1984
LAWS OF BRUNEI
300
[s. 43] FOURTH SCHEDULE -
FORM OF STATEMENT IN LIEU OF PROSPECTUS TO BE DELIVERED TO REGISTRAR BY A COMPANY WHICH DOES NOT ISSUE A PROSPECTUS OR WHICH DOES NOT GO TO ALLOTMENT ON A PROSPECTUS ISSUED
COMPANIES ACT, CAP. 39
Statement in lieu of Prospectus delivered for registration by
[Insert the name of the Company]
Pursuani to section 43 of the Companies Act.
Delivered for registration by
The nominal share capital of the Company.
Divided into .......................................
Amount (if any) of above capital which con
sists of redeemable preference shares.
The date on or before which these shares are, or are liable, to be redeemed.
Names, descriptions and addresses of direc
tors or proposed directors.
If the share capital of the Company is di vided into different classes of shares, the right of voting at meetings of the Com pany conferred by, and the rights in re spect of capital and dividends attached to, the several classes of shares respectively.
Number and amount of shares and deben tures agreed to be issued as fully or partly paid up otherwise than in cash.
The consideration for the intended issue of those shares and debentures.
Names and addresses of vendors of property purchased or acquired, or proposed to be purchased or acquired by the Company.
$
Shares of$ each Shares of$ each Shares of$ each
Shares of$ each
1. shares of
$ fully paid
2. shares upon which$
per share credited as paid
3. debenture$
4. Consideration
LAWS OF BRUNEI
Companies CAP. 39 301
Amount (in cash, shares, or debentures)
payable to each separate vendor.
Amount (if any) paid or payable (in cash or shares or debentures) for any such prop erty, specifying amount (if any) paid or payable for goodwill.
Amount (if any) paid or payable as commis sion for subscribing or agreeing to sub scribe or procuring or agreeing to procure subscriptions for any shares or debentures in the Company; or
Rate of the commission ......................... The number of shares, if any, which persons
have agreed for a commission to subscribe
absolutely.
Estimated amount of preliminary expenses. Amount paid or intended to be paid to any
promoter.
Consideration for the payment.
Dates of, and parties to, every material con tract (other than contracts entered into in the ordinary course of business intended to be carried on by the Company or en tered into more than 2 years before the delivery of this statement).
Time and place at which the contracts or copies thereof may be inspected.
Names and addresses of the auditors of the
Company (if any).
Full particulars of the nature and extent of the interest of every director in any prom otion of or in the property proposed to be acquired by the Company, or, where the interest of such a director consists in being a partner in a firm, the nature and extent of the interest of the firm, with a state ment of all sums paid or agreed to be paid to him or to the firm in cash or shares, or
Total purchase price
$
Cash $ Shares $ Debentures $
Goodwill $
Amount paid
Amount payable
Rate per cent
$
Name of promoter
Amount$
Consideration -
B.L.R.O. 111984
LAWS OF BRUNEI
302
otherwise, by any person either to induce him to become, or to qualify him as, a director, or otherwise for services ren dered by him or by the firm in connexion with the promotion or formation of the Company.
If it is proposed to acquire any business, the amount, as certified by the persons by whom the accounts of the business have been audited, of the net profits of the business in respect of each of the 3 finan cial years immediately preceding the date of this statement provided that in the case of a business which has been carried on for less than 3 years and the accounts of which have only been made up in respect of 2 years or one year the above require ment shall have effect as if references to 2 years or one year, as the case may be, were substituted for references to 3 years, and in any such case the statement shall say how long the business to be acquired has been carried on.
(Signatures of the persons above-named as directors or proposed directors, or of their agents authorised in writing).
Date
NOTE:-In this Schedule the expression "vendor'' includes a vendor as defined in Part III of the Third Schedule to this Act and the expression "finaneial year" has the meaning assigned to it in that Part of the said Schedule.
LAWS OF BRUNEI
Companies CAP. 39 303
FIFTH SCHEDULE
FORM OF ANNUAL RETURN OF A COMPANY HAVING A SHARE CAPITAL
[ss. 107 and
323]
Annual Return of the
the day of , 19 only ordinary general meeting in
Company, Berhad made up to
(being the date of the first or
' 19 ).
The address of the registered office of the Company is as follows
Summary of Share Capital and Shares
Nominal Share Capital $
divided into*
Total number of shares taken up* to the day of , 19 being the
date of the return (which number must agree with
the total shown in the list as held by existing mem
bers).
Number of shares issued subject to payment wholly in cash.
Number of shares issued as fully paid up otherwise than in cash.
Number of shares issued as partly paid up to the ex- tent of per share otherwise than in cash.
tNumber of shares (if any) issued at a dis- count.
Total amount of discount on the issue of $
shares which has not been written off at the date of this Return.
shares of each shares of each
*Where there are shares of different kinds or amounts (e.g., Preference and Ordinary of
$100 and $10) state the number and nominal values separately.
tif the shares are of different kinds, state them separately.
B.L.R.O. 111984
LAWS OF BRUNEI
304 CAP. 39 Companies
§There has been called up on $
each of shares
§There has been called up on $
each of shares
§There has been called up on $
each of shares
ttTotal amount of calls received, including $
payments on application and allotment
Total amount (if any) agreed to be consi- $
dered as paid on shares which have been issued as fully paid up other- wise than in cash.
Total amount (if any) agreed to be consi- $
dered as paid on shares which have been issued as partly paid up to the extent of per share otherwise than in cash.
Total amount of calls unpaid ......... ..... ..... $
Total amount of the sums (if any) paid by $
way of commission in respect of any
shares or debentures or allowed by way of discount in respect of any debentures since the date of the last Return.
Total number of shares forfeited.
Total amount paid (if any) on shares for- $
feited.
Total amount of shares for which share war- $
rants to bearer are outstanding.
Total amount of share warrants to bearer issued and surrendered respectively since the date of the last Return.
Number of shares comprised in each share warrant to bearer.
Issued$ Surrendered
$
Total amount of the indebtedness of the $ Company in respect of all mortgages and charges of the kind which are required to
be registered with the Registrar of Com panies under the Companies Act, Cap. 39.
§Where various amounts have been called, or there are shares of different kinds, state them separately.
ttlnclude what has been received on forfeited as well as on existing shares.
LAWS OF BRUNEI
Companies CAP. 39 305
COPY OF LAST AUDITED BALANCE SHEET OF THE COMPANY
Note.-Except where the Company is a "Private Company" within the meaning of section 29 of the Companies Act, this Return must include a written copy, certified by a Director or by the Manager or Secretary of the Company to be a true copy, of the last balance sheet which have been audited by the Company's auditors (including every document required by law to be annexed thereto) together with a copy of the report of the auditors thereon (certified as aforesaid), and if any such balance sheet is in a foreign language there must also be annexed to it a translation thereof in such language as may be prescribed by the Registrar certified in the prescribed manner to be a correct translation. If the said last balance sheet did not comply with the requirements of the Jaw as in force at the date of the audit with respect to the form of balance sheets there must be made such additions to and corrections in the said copy as would have been required to be made in the said balance sheet in order to make it comply with the said requirements, and the fact that the said copy has been so amended must be stated thereon.
PRIVATE COMPANY
Certificates to be given by a Private Company
A. "I certify that the Company has not since the date of the 1 last Annual Return issued any invitation to the public to subscribe for any shares or debentures of the Company".
(Signature)
(State whether Director or Secretary)
B. Should the number of members of the Company exceed 50 the following certificate is also required
"I certify that the excess of members of the Company above 50 consists wholly of persons who are in the employment of the Company and/or of persons who, having been formerly in the employment of the Company were while in such employment, and have continued after the determination of such employment to be, members of the Company''.
(Signature)
(State whether Director or Secretary)
·- 1In the case of the first Annual Return strike out the words "last Annual Return" and substitute therefor the words "Incorporation of the Company".
B.L.R.O. 111984
LAWS OF BRUNEI
306 CAP. 39 Companies
·The Return must be signed at the end by a Director or by the
Manager or Secretary of the Company.
Delivered for filing by
Particulars of the *Directors of the
Company, Berhad, at the date of the Annual Return.
tThe
+Other
present Name or Names
Usual business residential occupation address if any.
state so
•"Director" includes any person who occupies the position of a Director by whatever name called and any person in accordance with whose directions or instructions the Directors of a Company are accustomed to act.
tin the case of a Corporation its corporate name and registered or principal office should be shown.
+In the case of an individual who has no business occupation but holds any other direc torship or directorships particulars of that directorship or of some one of those direc torships must be entered.
( ( (
List of Persons holding Shares in the | Company, | ||
Berhad, on the | day of | , 19 | , and of Persons who have held |
Shares therein at any time since the date of the last Return, or (in the case of the first Return) of the incorporation of the
Company, showing their Names and Addresses, and an Account of the Shares so held.
N.B.-If the names in this list are not arranged in alphabetical order, an index sufficient to enable the name of any person in the list to be readily found must be annexed to this list.
Names, Addresses, and Account of Shares
- ··Oc·cu-pati-ons,-1
*Particulars of Shares Transferred *Particulars of Shares Transferred
*Number since the date of the last Return, since the date of the last Return, Folio in 0 of Shares or (in the case of the first Return) or (in the case of the first Return) Register "' held by of the incorporation of the Com- of the incorporation of the Com-
Ledge , Name Address "0 existing pany, by persons who are still pany, by persons who have ceased Remarks
contammg
;o!;·.
Members
Members to be Members
Particulars at date of
Date of Registra- Date of Registra-
tion of Transfer tion of Transfer
(Signature)
(State whether Director or Manager or Secretary)
•The aggregate Number of Shares held, and not the Distinctive Numbers, must be stated, and the column must be added up throughout so as to make one total to agree with that stated in the Summary to have been taken up.
tWhen the Shares are of different classes these columns may be subdivided so that the number of each class held. or transferred. may be shown separately. Where any Shares have been converted into Stock the amount of Stock held by each member must be shown.
*The date of Registration of each Transfer should be given as well as the Number of Shares transferred on each date. The Particulars should be placed opposite the name of the Transferor, and not opposite that of the Transferee, but the name of the Transferee may be inserted in the "Remarks" column immediately opposite the particulars of each Transfer.
LAWS OF BRUNEI
308
[s.130]
SIXTH SCHEDULE
FORM OF STATEMENT TO BE PUBLISHED BY INSURANCE COMPANIES AND DEPOSIT, PROVIDENT, OR BENEFIT SOCIETIES
*The share capital of the company is shares of each.
The number of shares issued is
, divided into
Calls to the amount of$ per share have been made, under which the sum of $ has been received.
The liabilities of the company on the first day of January
(or July) were
Debts owing to sundry persons by the company.
On judgment, $ On speciality, $
On notes or bills, $
On simple contracts, $
On estimated liabilities, $
The assets of the company on that day were - Government securities [stating them]
Bills of exchange and promissory notes, $
Cash at the bankers,$ Other securities, $
*If the company has no share capital the portion of the statement relating to capital and shares must be omitted.
LAWS OF BRUNEI
Companies CAP. 39 309
SEVENTH SCHEDULE [s. 247]
PROVISIONS WHICH DO NOT APPLY IN THE CASE OF A WINDING UP SUBJECT TO SUPERVISION OF THE COURT
Statement of Companies affairs to be submitted to Official Section
Receiver. 175
Report of Official Receiver.
Power of Court to appoint Liquidator.
Appointment and powers of provisional Liquidator. Appointment, style, &c., of Liquidators in winding up.
176
177
178
179
Provisions where person other than Official Receiver is appointed 180
Liquidator.
General provisions as to Liquidators. Exercise and control of Liquidators' powers. Books to be kept by Liquidator.
Payments of Liquidator into bank or Treasury. Audit of Liquidator's accounts.
Control of Official Receiver over Liquidators.
Release of Liquidators.
181 except
ss.(5)
185
186
187
188
189
190
Meeting of creditors and contributories to determine whether com- 191
mittee of inspection shall be appointed.
Constitution and proceedings of committee of inspection. Powers of the Court where no committee of inspection.
Appointment of special manager.
- Power to order public examination of promoters, directors, &c.
192
193
201
207
Power to restrain fraudulent persons from managing companies. 208
Delegation to Liquidator of certain powers of Court. 211
Power to appoint Official Receiver as receiver for debenture hoi- 283
ders or creditors.
B.L.R.O. 111984
LAWS OF BRUNEI
310 CAP. 39 Companies
EIGHTH SCHEDULE
TABLE OF FEES TO BE PAID TO THE REGISTRAR
By a Company having a Share Capital
1. For registration of a company whose nominal share capital does not exceed $25,000 ....................................................... ..
2. For registration of a company whose nominal share capital exceeds
$25,000 the above fee of $300 with the following additional fees regulated according to the amount of nominal share capital (that is to say)
For every $5.000 of nominal share capitaL or part of $5,000. after the first $25,000 up to $500,000 ...........................
For every $5.000 of nominal share capital or part of $5,000 after the first $500,000 up to $1,000,000 .......................
For every $15,000 of nominal share capital or part of $15,000 after the first $1,000,000 up to $50,000,000 ...................
For every $20,000 of nominal share capital or part of $20,000 after the first $50,000,000 ........................................ .
3. On lodging notice of increase of share capital-an amount equal to the difference (if any) between the amount which would have been payable under the Act on first registration by reference to its capital as increased and the amount would have been payable under the Act by reference to its capital immediately before the increase:
Provided that no company shall be liable to pay in respect of nominal share capital on registration or thereafter any greater amount of fees than $35,000 taking into account in the case of fees payable on an increase of share capital after registration the fees paid on registration.
By a Company having a Share Capital
4. For registration of a company whose number of members as stated in the articles of association does not exceed 20 .....................
5. For registration of a company whose number of members as stated in the articles of association exceeds 20 but does not exceed 100 the additional fee of $150 (with an additional $5 for every 50 members or less than 50 members after the first 100) but no company shall be liable to pay on the whole a greater fee than
$600 in respect of its number of members taking into account the fee paid on the first registration of the company.
$ ¢
300.00
20.00 lO.OO
5.00
3.00
150.00
LAWS OF BRUNEI
Companies CAP. 39
311
6. For registration of a company in which the number of members is stated in the articles of association to be unlimited .................
Other Fees
7. For every application for consent of His Majesty to use of a name
$ ¢
600.00
by a company . ....... ......................... .... .... .... .... .. ... .. . . ..... 25.00
8. For every command of His Majesty granting consent to use of a
name by a company ........................................................
9. For every approval of His Majesty to the change of the name of a company (otherwise than a change of name with the Registrar's consent pursuant to the provisions of subsection 2 of section
22) .............................................................................
10. For perusing memorandum or articles of a company in connection with an application for a licence under section 21 ..................
11. For every licence of His Majesty to dispense with the word
"Berhad" in the name of a company ...................................
12. For an approval of High Court to alter the memorandum or arti- cles of a company ...........................................................
13. On the late lodging of any document under this Act after the period prescribed by law, in addition to any other fee .............
The Registrar, if satisfied that just cause existed for the late lodgement may waive in whole or in part the additional fee.
14. For the registration of a foreign company-
(a) subject to paragraph (b). one-half of the appropriate fee prescribed in respect of a company registered or in corporated under Part I of the Act; and
(b) where a fee prescribed in paragraph (a) is not applic- able ...............................................................
15. On lodging by a foreign company of notice of increase in share capital or in the case of a foreign company not having a share capital on the lodging of notice of increase in number of mem bers beyond its registered number--one-half of the prescribed fee payable on the increase in share capital or on the increase in the number of members of a company incorporated or reg istered under Part I of the Act.
16. For registering particulars of each series of debenture where more
50.00
50.00
100.00
100.00
100.00
100.00
600.00
than one issue in the series ........................................... .... 10.00
B.L.R.O.l/1984
LAWS OF BRUNEI
312 CAP. 39 Companies
17. On an application for the reservation of a name .......................
18. For granting extension of time for the reservation of a name for a further period after the first reservation ..............................
19. For search as to availability of any name proposed to be adopted by a company, for every name searched .............................
20. On lodging articles of association of a company ........................
21. On lodging a copy of any special resolution altering the memoran- dum or articles of association of a company ..........................
22. On lodging any prospectus or document required under section
308 .............................................................................
23. For registering any charge created by a company ......................
24. For registering the appointment of a receiver or manager of the property of a company under section 87 ..............................
25. For registering particulars of a series of debentures created by a company ......................................................................
26. For the entry in the register of charge of any memorandum of satisfaction ...................................................................
27. For each inspection of the register of charges ...........................
28. On lodging any application .................................................
- 29. For every certificate issued by the Registrar under the Act or any other Act .....................................................................
$ ¢
15.00
5.00
5.00
10.00
10.00
25.00
25.00
25.00
25.00
10.00
5.00
5.00
25.00
30. For supplying a photographic or microprint copy of, or ex
tract from, any document
31. For supplying and certifying a photographic or microprint copy of, or extract from, any document
$2.00 for each page or part thereof
$4.00 for each page or part thereof
32. For each search for and inspection of a document filed by or in relation to a company ...................................................
33. For any information concerning a company supplied by the Reg- istrar in reply to a written application .................................
34. For every approval of an authorised auditor granted by His Majes- ty in Council .................................................................
35. For every appointment of a t ompany liquidator by the High
Court ..........................................................................
5.00
10.00
lOOJX)
100.00
LAWS OF BRUNEI
Companies CAP. 39 313
36. On lodging any annual return of a company ............................
37. On lodging registering depositing or filling any other document with or by the Registrar under any Act (where the fee is not specified in any relevant Act or Regulations) ........................
Fees payable with respect to companies formed or incorporated outside Brunei shall where appropriate be calculated after the conversion of the share capital to Brunei currency.
38. For registering any document required to be filed in complying
$ ¢
20.00
10.00
with the provisions of Part VII .......................................... 10.00
-
B.L.R.O. 111984
LAWS OF BRUNEI
314 CAP. 39 Companies
NINTH SCHEDULE
PROVISIONS REFERRED TO IN SECTION 312 OF THE ACT Provisions relating to
Conclusiveness of certificate of incorporation;
Registrar may accept statutory declarations as sufficient evidence of compliance with registration requirements;
Specific requirements as to particulars in prospectus;
Section
18
19
38
[s. 312] -
-
Prohibition of allotment in certain cases unless statement in lieu of
prospectus delivered to Registrar; Return as to allotments;
Registration of charges created by company registered in Brunei; Duty of company to register charges created by company;
Duty of company to register charges existing on property acquired; Application of Part III to companies incorporated outside Brunei; Restrictions on commencement of business;
The particulars as to directors and indebtedness of the company;
43
45
80
81(1)
82
91
94
107(3)(n)
(o)
Statutory meeting and statutory report;
Auditors' report and right to information and explanations; Restrictions on appointment or advertisement of director; Notice by liquidator of his appointment;
Delivery to Registrar of accounts of receivers and managers;
Documents, &c., to be delivered to Registrar by companies car- rying on business in Brunei;
Return to be delivered to Registrar where documents, &c., altered Balance sheet of company carrying on business in Brunei; Obligation to state name of company, &c.
112
133(1)(2)
139
238
286
299
301
302
303
LAWS OF BRUNEI
Companies CAP. 39 315
TENTH SCHEDULE
(Section 324)
Winding up of Companies
1. Every petition
SCALE OF FEES
TABLE A
$ <t
50.00
2. Every bond with sureties ....................................................
3. Every Subpoena or Summons ..............................................
4. On issuing an office copy of a judgment or order made in Court (except an order upon a petition for winding up, an order ad journing a public examination, and an order appointing a shor thand writer)
(a) if made in Court .................................................... (b) if not made in Court ...............................................
5. Every order adjourning a public examination ..........................
6. Every order appointing a shorthand writer ..............................
7. Every affidavit filed other than proof of debt ...........................
8. For taking an affidavit or an affirmation in lieu of an affidavit, or a declaration, except for proof of debts, for each person making the same ......................................................................
And in addition thereto for each exhibit referred to therein and
10.00
2.00
25.00
15.00
5.00
5.00
10.00
10.00
required to be marked .................................................... 5.00
9. On every proof of debt above $10 (other than proof for workmen's
wages) .............................................. .......................... 5.00
10. Every other office copy, for each page on part thereof ........ ....... 2.00
11. On every application to the Court to approve a reconstruction or other scheme by which the affairs of the Company are to be wound-up otherwise than by the realisation and distribution of
assets .......................................................................... 100.00
12. On every order of the Court approving such reconstruction or scheme, a fee according to the following scale on the estimated value of the Company's property transferred or otherwise dis posed of, viz-
(i) On the first $500,000 or fraction thereof ........................ 1/2 per cent
B.L.R.O. 111984
LAWS OF BRUNEI | ||
316 | CAP. 39 Companies | |
(ii) On the next $500,000 or fraction thereof ....................... (iii) Above $LOOO,OOO or fraction thereof .. ......................... | lf4 per cent lfH per cent |
13. For taxation of costs-
the same fees as those directed to be paid and collected by the order for the time being in force as to fees in the original jurisdiction of the High Court.
TABLE B
$ ¢
1. Every inspection of any document lodged with the Official Receiv- er ...............................................................................
2. Every copy of or extract from such document, for each page or part thereof ..................................................................
3. Every application by a committee of inspection to the Official
Receiver for a special bank account ....................................
4. Every order of the Official Receiver for a special bank account ....
5. Every application under section 241 of the Act to the Official Receiver for payment of money out of the Companies Liquida tion Account; and every application for the re-issue of a lapsed cheque or money order in respect of moneys standing to the credit of the Companies Liquidation Account -
5.00
2.00
20.00
20.00
Where the amount applied for does not exceed $10 ............. | 50 |
Where the amount applied for exceeds $10 ....................... | 1.00 |
Where the amount applied for exceeds $100 ...................... | 5.00 |
TABLEC
I. On the audit of the Official Receiver's or liquidator's accounts a fee according to the following scale on the amount brought to credit, including the produce of calls on contributories, but after deducting (1) money received and spent in carrying on the business of the company and (2) amounts paid by the Official Receiver or liquidator to secured creditors (other than debenture holders)-
On the first $100,000 orfraction thereof ........................ .. 1 per cent On the next $900,000 or fraction thereof ................... ....... V2 per cent On the next $4,000,000 or fraction thereof V4 per cent On the next $5,000,000 or fraction thereof . ....................... Va per cent Above $10,000,000 ..................................................... V16 per cent
LAWS OF BRUNEI
Companies CAP. 39 317
II. Where the Official Receiver acts as provisional liquidator only -
(a) Where no winding-up order is made upon the petition or where a wind ing-up order is rescinded or all further proceedings are stayed in prior to the summoning of the statutory meetings of creditors and contributories.
Such amount as the Court may consider reasonable to be paid by the peti tioner or by the company as the Court may direct in respect of the services of the Official Receiver as provisional liquidator.
(b) Where a winding-up order is made but the Official Receiver is not continued as liquidator after the statutory meeting of creditors and contribu tories.
(1) In respect of every 10 members, creditors and debtors and
every fraction of 10 up to 1,000 .........................................
For every 10 or fraction of 10 above 1,000 .........................
$ 5.00
2.50
Provided that where the net assets of the company including uncalled capit al are estimated in the statement of affairs not to exceed $5,000, three-fifths of the above fee only shall be charged.
(This fee to include cost of official stationery, printing, books, forms and postage.)
(2) On the value of the company's property as estimated in the statement of affairs after deducting (in cases where a person other than the Official Receiv er has, prior to the making of a winding-up order, been appointed receiver for debenture holders) the amount due to debenture holders
On the first $100,000 or fraction thereof ........................... 1 per cent On the next $200,000 or fraction thereof .......................... Vz per cent On the next $700,000 orfraction thereof ..... ..................... 1/4 per cent Above $1,000,000 ....................................................... 1/s per cent
III. Where the Official Receiver acts as liquidator of the company (including his services as provisional liquidator)
(1) In respect of every 10 members, creditors and debtors and
every fraction of 10 ........................................................ $10.00
Provided that where net assets of the company, including uncalled capital, do not exceed $5,000, three-fifths of the above fee only shall be charged.
(This fee is to include cost of official stationery, printing, books, forms and postage.)
(2) Upon the total assets, including, produce of calls on contributories, realised or brought to credit by the Official Receiver, after deducting sums on which fees are chargeable under No. IV of this Table and not being moneys received and spent in carrying on the business of the company -
On the first $10,000 or fraction thereof ............................. 5 per cent
B.L.R.O. 111984
LAWS OF BRUNEI
318 CAP. 39 Companies
On the next $15,000 or fraction thereof
On the next $25,000 or fraction thereof
4 per cent
3 per cent
On the next $50,000 or fraction thereof .................. ....... ... 2 per cent On the next $900,000 or fraction thereof .................... ..... 1 per cent Above $1,000,000 ....................................................... Vz per cent (3) On the amount distributed in dividend or paid to contributories, pre-
ferential creditors and debenture holder by the Official Receiver, half the
above percentages.
IV. Where the Official Receiver collects, calls or realises property for debenture holders or other secured creditors
The same fees as under No. III (2) and (3) of this Table, to be paid out of the proceeds of such calls or property.
V. Where the Official Receiver performs any special duties not provided for in the foregoing tables
Such amount as the Court, on the application of the Official Receiver, may consider reasonable.
VI. Travelling, keeping possession, law costs, and other reasonable expenses of the
Official Receiver -
The amount disbursed.
VII.On every payment under section 241 of the Act of money out of the Companies Liquidation Account 10 cents on each $10 or fraction of $10 to be charged as follows-
Where the money consists of unclaimed dividend, on each dividend paid out.
Where the money consists of undistributed funds or balances, on the amount paid out.
LAWS OF BRUNEI
Companies CAP. 39 319
ELEVENTH SCHEDULE
COMPANIES (FORMS) RULES [Sec 324]
1. This order may be cited as the Companies (Forms) Rules.
2. In this order
"the Act" means the Companies Act.
3. The forms contained in the Schedule, with such variations and additions as the circumstances of the particular case may require, shall be used for the purposes of the Act and the particulars contained therein are hereby prescribed as the particulars required under the Act.
4. (1) A certified copy of the charter, statutes, or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company required to be delivered to the Registrar under section 299 of the Act, in the case of a company incorporated outside Brunei in any part of the Commonwealth or in any place where Her Britannic Majesty has jurisdiction, unless incorporated under the laws of a foreign country shall be deemed to be certified as a true copy if in such part of the Commonwealth or place it is
(a) duly certified as a true copy by an official of the Gov
ernment to whose custody the original is committed;
(b) duly certified as a true copy by a notary public in such part of the Commonwealth or place; or
(d) duly certified as a true copy on oath by some officer of the company before a Brunei Consul or some person having authority to administer an oath as provided by section 3 of the Commissioners for Oaths Act 1889.
Citation
lnterpreta·
tion
Forms
Certified
copy of Char. ter, etc., under
section 299
(2) A certified copy of the charter, statutes, or memorandum and articles of the company or other instrument constituting or defining the constitution of the company required to be delivered to the Reg istrar under section 299 of the Act in the case of a company incorpo rated outside Brunei under the laws of a foreign country shall be deemed to be certified as a true copy if in such foreign country it is
(a) duly certified as a true copy by an official of the Gov
ernment to whose custody the original is committed, the
B.L.R.O. JIJ984
LAWS OF BRUNEI
320
Time for de livering par ticulars of alterations under
section 301
Verified or certified copy of charge under
sections 80
and 82
Translations
signature or seal of such official being authenticated by a
Brunei Consul.
(b) duly certified as a true copy by a notary of such foreign country, the certificate of the notary being authenticated by a Burnei Consul; or
(c) duly certified as a true copy on oath by some officer of the company before a Brunei Consul.
5. The time within which a return containing the particulars of alterations is to be delivered to the Registrar under section 301 of the Act shall be 21 days after the date of making of such alterations or 21 days after the date on which notice thereof could in due course of post and if despatched with due diligence have been received in Bandar Seri Begawan.
6. A copy of the instrument by which a charge is created or evi denced to be delivered to the Registrar under the provisions of subsection (3) of section 80 and subsection (1) of section 82 of the Act shall be verified or certified to be a true copy under the seal of the company, or under the hand of some person interested therein other wise than on behalf of the company.
7. A translation of a charter, statutes of memorandum and articles of association or other instrument constituting or defining the constitu tion of a company or any account or document required to be delivered to the Registrar of Companies under the Act shall be certified by the person making such translation to be a correct translation and shall be deemed to be certified in the prescribed manner if the person making such translation be certified by the appropriate person hereunder men tioned to be believed by him to be competent to translate it into the English language, that is to say
(a) if the translation be made in a foreign country- a Brunei Consul;
(b) if the translation be made outside Brunei or in any part of the Commonwealth or in any place where Her Britan nic Majesty had jurisdiction -
any person having authority to administer an oath as pro vided by section 3 of the Commissioner for Oaths Act 1889 of the United Kingdom;
LAWS OF BRUNEI
Companies CAP. 39 321
(c) if the translation he made in Northern Ireland
(i) a notary public in Northern Ireland, or
(ii) a solicitor of the Supreme Court of Judicature of North
ern Ireland;
(d) if the translation be made in Scotland
(i) a notary public in Scotland, or
(ii) an enrolled Law Agent;
(e) if the translation be made in England
(i) a notary public in England, or
(ii) a solicitor of the Supreme Court of Judicature in Eng-
land; and
(f) if the translation be made in Brunei
(i) a Magistrate, or
(ii) A Commissioner of Oaths of Brunei.
8. The Registrar may in any particular case, if he thinks fit to do so and upon such conditions as he thinks fit, permit certified copies of translations to be delivered to him though not certified in accordance with the above requirements.
Provision for particular cases
-
B.L.R.O. 111984
LAWS OF BRUNEI
322 CAP. 39 Companies
List of Forms in the Schedule
FORM RELEVANT NUMBER SECTION
I | 45 (2) | Particulars of a contract relating to shares. |
I (F) | 80 & 91 | Particulars of a mortgage or charge on property in Brunei |
created on or after 1st January, 1957, by a company in- corporated outside Brunei.
n 46 (1) (c Statement of the amount or rate per cent of the commission (ii) & (d payable in respect of shares and of the number of shares which persons have agreed for a commission to subscribe
absolutely.
II (F) 82 & 91 Particulars of a mortgage or charge subject to which proper- ty in Brunei has been acquired on or after the 1st January,
1957, by a company incorporated outside Brunei.
III 55 Notice of increase in nominal capital.
III (F) 301 Return of alteration in the charter, statutes, memorandum or articles of association or other instrument constituting or defining the constitution of a company incorporated outside Brunei.
IV 80 Particulars of a mort age or charge created by a company
, registered in Brunei.
IV (F) 301 Return of alteration in the list of particulars of directors of a company incorporated outside Brunei.
v 82 Particulars of a mortgage or charge subject to which proper- ty has been acquired on or after 1st January, 1957, by a company registered in Brunei.
V (F) 301 Return of alteration in the names or addresses of persons resident in Brunei authorised to accept service on behalf of a company incorporated outside Brunei.
VI 83 (I) Register of mortgages and charges, and of memoranda of satisfaction.
VII 83 (4) Chronological index of charges entered in the Register.
VIII 94 (!)(c) Declaration that the conditions of section 94 (I) (a) and (b)
of the Companies Act, have been complied with.
IX 94 (2) (c) Declaration that the provisions of section 94 (2) (b) of the
Companies Act, have been complied with.
X 143 Particulars of directors or managers and of any changes therein.
XI !53 (1) Notice to dissenting shareholders.
XII 286 Receiver or manager's abstract of receipts and payments.
LAWS OF BRUNEI
Companies CAP. 39 323
SCHEDULE (Rule 3)
FORM I
COMPANIES ACT, CAP. 39
Particulars of a contract relating to shares
PURSUANT TO SECTION 45 (2)
Fee $10.00
NOTE-The particulars must be stamped with the same stamp duty as would have been payable if the contract had been reduced to writing.
Presented by .................................................................................................. .
Particulars of contract relating to shares allotted as fully or partly paid up otherwise than in cash by ................................................................................................ .
Berhad.
(I) The number of shares allotted as fully or partly paid up otherwise than in cash .................. ..
(2) The nominal amount of each such share . ..... .. $
(3) The amount to be considered as paid up on each such share otherwise than in cash .. . . . . . . . . $
(4) If the consideration for the allottment of such shares in services, or any consideration other than that mentioned below in part 5, state the nature of such consideration, and the number of shares so allotted ................................ ..
(5) If the allottment is made in satisfaction or part satisfaction of the purchase price of property, give a brief description of such property, and
(I) Brief description of property.
full particulars of the manner in which the (2) Purchase price. $
purchase price is to be satisfied .... ......... .... .. (a) Total amount of consideration $ as paid on ........ shares allotted otherwise than in cash.
(b) Cash.
- (c)
Amount of debt re leased or liabilities assumed by the pur chaser (including mortgages; on prop erty acquired).
Total purchase price ................ $
B.L.R.O. l!1984
LAWS OF BRUNEI
324
CAP. 39 Companies
FORM l-Continued
(6) Give full particulars, in the fonn of the follow ing table, of the property which is the subject of the sale, showing in detail how the total purchase price is apportioned between the re spective heads-
Legal estates in freehold property and fixed plant and machinery and other fixtures thereon (a) ...................................... .
Legal estates in leasehold property (a) ....... Fixed plant and machinery on leasehold
property (including tenants', trade, and
other fixtures) ...................................
Equitable interests in freehold or leasehold property (a) .....................................
Loose plant and machinery, stock-in-trade, and other chattels (b) .........................
Goodwill and benefit of contracts ............. Patents, designs, trade marks, licences,
copyrights, etc. .................................
Book and other debts ............................ Cash in hand and at Bank on current
account, bills, notes, etc......................
Cash on deposit at Bank or elsewhere ....... . Shares, debentures and other investments .. Other property, viz. ..............................
$
(Signature) .....................................................................................................
(State whether Director or Manager or Secretary)
Dated the ...............day of ................. . .., 19......
(a} Where such properties arc sold subjt:ct to morlgage, the gross value should he shown.
(b) No plam and mHchincry which was not in an actual state of sevcrana on the di.1tc of the saJc should be included under this head
LAWS OF BRUNEI
Companies CAP. 39 325
FORM I (F) Fee $25.00
COMPANIES ACT, CAP. 39
Particulars of a mortgage or charge on property in Brunei created 011 or after the lst
January, !957, by a company incorporated outside Brunei
PURSUANT TO SECTIONS 80 AND 91
Presented by ...............................
Particulars of a mortgage or charge created by ....................................................... . a company incorporated in (a) ..........;............................................. and which
has established a place of business in Brunei at ..................................................
Signature of the persons authorised under sec- tion 299 (c) of the Companies Act, or of some other person in Brunei duly autho rised by the Company.
Dated the ...............day of .............................. 19......
(a) Country or origin.
(b) A description of the instrument. e.g .• "trust deed", '•mortgage", ''debenture", etc . as the case may be. should
be given.
(c) The rate of interest payable under the terms of the debentures should not he entered,
B.L.R.O. J/!984
LAWS OF BRUNEI
326 CAP. 39 Companies
FORM II Fee $10.00
COMPANIES ACT, CAP. 39
Statement of the amount or rate per cent of the commission payable in respect of shares and of the number of shares which persons have agreed for a commission to subscribe absolutely
PURSUANT TO SECTION 46 (l) (c) (ii) AND (d)
Presented by .................................................................................................. .
Name of company ................................................................................ Berhad
Article of association authorising commission ................ ..
Particulars. of amount payable as commission for subscrib ing, or agreeing to subscribe. or for procuring or agreeing to procure. subscriptions for any shares in the company;or ......................................................
No.
!$ ............................. .
Rate of such commission ........................................... .. Rate per cem
Date of circular or notice (if any). not being a prospectus. }
inviting subscriptions for the shares and disclosing the Date ········ ..···....········
amount or rate of the commission ...........................
Number of shares which persons have agreed for a commis-
sion to subscribe absolutely.................................... No.................. ..
(Signatures of all the direcrors or of their agents awlwrised in writing) ..............
Dated this .. ....day of. ............... 19......
LAWS OF BRUNEI
Companies CAP. 39 327
FORMII(F) Fee $25.00
COMPANIES ACT, CAP. 39
Particulars of a mortgage or charge subject to which property in Brunei has been acquired on or after the 1st January, 1957, by a company incorporated outside Brunei
PURSUANT TO SECTIONS 82 AND 91
Presented by ...................................................................................................
Particulars of a mortgage or charge subject to wl:!icl:! property in Brunei lias been acquired by ..........................................................................................................
a Company incorporated in (a) ........................................................ and which has established a place of business in Brunei at ..................................................
1 2 Date and I Date description of of tile the instrument acquisition creating or of the | 3 I 4 Amount Short secured particulars | 5 Names, addresses and descriptions of the mortgagees or persons entitled to the charge | ||
1 2 Date and I Date description of of tile the instrument acquisition creating or of the | by the mortgage or charge | of the property mortgaged or charged | 5 Names, addresses and descriptions of the mortgagees or persons entitled to the charge | |
evidencing the mortgage or charge (b) | property | by the mortgage or charge | of the property mortgaged or charged | 5 Names, addresses and descriptions of the mortgagees or persons entitled to the charge |
I |
Signature of the persons authorised under sec- tion 299 (c) of the Companies Act, or of some other person in Brunei duly autho rised by the Company
Dated the ...............day of .............................., 19......
(a) Country of origin.
(b) A description of the instrument, e.g., "trust deed", "mortgage", "debenture". etc., as the case may be, should be given.
A copy of the instrument certified as prescribed in paragraph 5 of this order, must be delivered with these
particulars.
WI B.L.R.O.l/l984
LAWS OF BRUNEI
328 CAP. 39 Companies
FORM III Fee $10.00
COMPANIES ACT, CAP. 39
Notice of increase in nominal capital
PURSUANT TO SECTION 55
Presented by ...................................................................................................
To the REGISTRAR OF COMPANIES
............................................................. Company ........................................ hereby gives you notice to pursuant to section 55 of the Companies Act, that by (a) ....................... ........................... resolution of the Company dated
...............day of .............................. , 19......, the nominal capital of the Company
has been increased by the addition thereto of the sum of$ ......................... beyond the registered capital of $ ........................................
The additional capital is divided as follows
Number of shares | Class of share | Nominal amount of each share |
The conditions (e.g., voting rights, dividends, etc.) subject to which the new shares have been or arc to be issued are as follows
(If any of the new shares are preference shares state whether they are redeemable or not).
Signature ....................................................... .
(State whether Director or Manager or Secretary) ......................................... Dated the ...............day of .............................., 19......
(a} "ordinary"• .,. xtraun.Jinary", or "special'',
LAWS OF BRUNEI
Companies CAP. 39 329
FORMIII(F) Fee $10.00
COMPANIES ACT, CAP. 39
Return of alteration in the charter, statutes, memorandum or articles of association or other instrument eonslituting or defining the eonstitution of a company incorporated outside Brunei
PURSUANT TO SECTION 301
Presented by ...................................................................................................
Return of alteration in the (a) ............ .. .............................................. constituting or defining the constitution of .......................................................................
a company incorporated in (b) ...................................................................... and which has established a place of business in Brunei at ....................................
(c) Certified copy of alteration or certified copy of new deed, if one has been executed, and certified translation of alteration or deed must accompany this return and be shortly referred to here.
Signature of the persons authorised under sec- ) tion 299 (c) of the Companies Act, or of some other person in Brunei duly autho rised by the Company.
Dated the ...............day of .............................. , 19......
(a) ''charter", "statutes". "memorandum or artk1es of assoeiation" or other instrument as the case may be.
(b) Country of origin.
(c) The copy and translation (if any) must be certified in the manner prescribed in paragraphs 3 and 6 of this order.
B.L.R.O. J/1984
LAWS OF BRUNEI
330 CAP. 39 Companies
FORM IV Fee $25.00
COMPANIES ACT, CAP. 39
Particulars of a mortgage or charge created by a company registered in Brunei
PURSUANT TO SECTION 80
Presented by ...................................................................................................
Particulars of a mortgage or charge created by ........................................................
.................................................. Berhad.
1 Date and description of the instrument creating or evidencing the mortgage or charge (a) | 2 Amount secured by the mortgage or charge | 3 Short particulars of the property mortgaged or charged. | 4 Names, addresses and descriptions of the mortgagees or persons entitled to the charge | 5 Amount or rate per cent of the commission, allo- wance or discount (if any) paid or made either directly or in- directly by the company to the person in consid- eration of his subscrib- ing or agreeing to sub- scribe whether abso- lutely or. conditiona ly, or procunng or agreemg to procure subscrip- lions, whether absolute or conditional, for any of the debentures in- eluded in this return (b) |
(Signature) .........................................................................................
(Designation of position in relation to the company) ......................................
Dated the ...............day of .............................., 19......
(a) A descriptton of the instrument, e.g., "trust deed", umortgage'', "debenture", etc., as the case may be, should
be given.
(b) The rate of interest payable under the terms of the debentures should not be entered.
LAWS OF BRUNEI
Companies CAP. 39 331
FORMIV(F) Fee $10.00
COMPANIES ACT', CAP. 39
Return of alteration in the list or particulars of directors of the company incorporated outside Brunei
PURSUANT TO SECTION 309
Presented by .................................................................................................. Return of alteration in the list or particulars of directors (a) ..................................... ..
.................... of ............................................................................................
a company incorporated in (b) ........................................................ and which has established a place of business in Brunei at .............................................................
The
Any
I Remarks
present Nation
name or
names name or
(c) names
shirn = y
state so (d)
as to the alteration (e)
Signature of the persons authorised under sec- tion 299 (c) of the Companies Act, or of some other person in Brunei duly autho rised by the Company.
Dated the ...............day of .............................., 19......
(a) "director" includes any person who occupies the position of a director by whatever name called.and any person in accordance with whose directions or instructions the directors of a company are accustomed to act,
(b) Country of origin.
(c) In the case of a corporation its corporate name and registered or principal office should be shown.
(d) In the case of an individual who has no business occupation but ho1ds any other directorship or directorships. particulars of that directorship or of some one of those directorships must be entered.
(e) A complete list of the directors or managers shown as existing in the last return should always be given. A note of the chan,es since the Jast list was filed should be made in this column.e.g., by placing against a new director's name the words • in place of ·• and by writing against any former director's name the words "dead", ..resigned". or as the case may be.
B.L.R.0. /1/984
LAWS OF BRUNEI
332 CAP. 39 Companies
FORMV Fee $25.00
COMPANIES ACT, CAP. 39
Particulars of a mortgage or charge subject to which property has been acquired on or after 1st January, 1957, by a Company registered in Brunei
PURSUANT TO SECTION 82
Presented by ...................................................................................................
Particulars of a mortgage or charge subject to which property has been acquired on or after 1st January, 1957, by ..................................................................................
.............................. Berhad.
1 2 3 4 5
Date and Amount Short Names, description of Date of the owing on particulars addresses and
creating or acquisition security of the the mortgagees
evidencing the mortgage or
of the of the property property mortgage mortgaged
or persons entitled to the
charge (a) or charge or charged charge
I
(Signature) ....................................................
(Designation of position in relation w the company) ......................................
Dated the ............... day of .............................., 19......
(u) A description of the instrument.e.g.. "trust deed", "mortgage"."debenture".etc.. as the case may be, should be given.
A ropy of the instrument, certified us prescribed in paragraph 5 of this Order. must be delivered with these
particulars,
LAWS OF BRUNEI
Companies CAP. 39 333
FORMV(F) Fee $10.00
COMPANIES ACT, CAP. 39
Return of alteration in the names or addresses of the persons resident in Brunei autho
rised to accept service on behalf of a company incorporated outside Brunei
PURSUANT TO SECTION 301
Presented by ...................................................................................................
Return of alteration in the names or addresses of the persons resident in Brunei authorised to accept on behalf of the company service of process and any notices required to be servedon .................................................................................................
a company incorporated in (a) ...................................................................... and which has established a place of business in Brunei at ....................................
The following are the particulars of such alteration(s).
(State full name and address of any newly appointed authorised person)
Signature of the persons authorised under sec- I.................................................
bJ! ;
i;. Brunei duly autho- .................................................
0
.................................................
- Dated the ...............day of .............................. , 19......
(a) Country of origin.
B.L.R.O.l/1984
IDate of regimation
Date of creation of each
mort agc or charge and N
descnption thereof
"V"j'"
(..;.'
"T'j
0
::0
-<
--··-··-··-------t-··· -- -----1
Amount secured bv the
mortgage or chargC
Extst.icharge. Date o( the
a1.;qutMUon of the property :;:
Short particulars of the pr<r ._
perty mortgaged or charged
Names of the mortgagees or persons entitled to the charge A
Total amount secured 1
by a series of c-.
a a
Q,
0,... ri<i po
""
::>
0..
n
::r "..'. ""
po
::>
0..
0
"3'
0...
"::'I
0..
0"...'.,
V>
-g I
r;;·
" ,f.;,j'
Dates of the I resolutions 111 5 en authonsmg the tssue 2,ac;
g.
::I
0....,
of the series 5-0s--
Date of the covering "
deed
General description of the property charged i
Names of the trustees for the debenture holders
I
i
>=s':
o:
;:;':
-
til
('1)
<= !c:?;.·
::>
Ol
::r
"...'.
"p.'.
0w0
S<JJUVdUJO:J
6£ "dV;)
t££
13Nl1H8 .':10 SMV1
( ( (
FORM VII
Date of registration
Chronological index of charges entered in the Register
(Section 83 (4) )
Serial Amount Date Debentures
i
i
I I
Remarks
LAWS OF BRUNEI
336 CAP. 39 Companies
FORM VIII Fee $10.00
COMPANIES ACT, CAP. 39
Declaration that the conditions of section 94 (1) (a) and (b) of the Companies Act, have been complied with
PURSUANT TO SECTION 94 (1) (c)
To be used by a company which issued a prospectus on or with reference to its formation.
Presented by ...................................................................................................
J ............................................................................................................
of .................................................................................................................
being (a) ........................................................................................................
of .................................................................................................................
......................................................................................................... Berhad, do solemnly and sincerely declare
That th mo!-lnt of the share capital of the company offered to the public for sub-
scnpt!On ts $ .......................................................................................
That the amount stated in the prospectus as the minimum amount which in the opinion of the directors must be raised by the issue of share capital in order to provide for the matters specified in paragraph 5 Part I of the Third Schedule to the Companies Act, is$ .........................................................................
That shares held subject to the payment of the whole amount thereof in cash have been allotted to the amount of$ ..............................................................
That every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription.
And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act.
Declared at ....................................
the .......... dayof ...........................
.................... , 19.......... before me
A Magistrate (b)
(u) "The secretary". or "a director".
(b) or the Chief Registrar or a Deputy Registrar of the Supreme Court.
LAWS OF BRUNEI
Companies CAP. 39 337
FORM IX Fee $10.00
COMPANIES ACT, CAP. 39
Declaration that the provisions of section 94 (2) (b), of the Companies Act, have been complied with
PURSUANT TO SECTION 94 (2) (c)
To be used by a company which has delivered to the Registrar of Companies a statement in lieu of prospectus.
Presented by ...................................................................................................
I, ........................................................................................................... of .................................................................................................................
being (a) ........................................................................................................ of .................................................................................................................
Berhad, do solemnly and sincerely declare -
That every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash.
And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act.
Declared at ..........................................
the .......... dayof ...........................
...................., 19..........
before me
A Magistrate (b)
(a) ''The secretary", or "a directorH.
(b) or the Chief Registrar or a Deputy Registrar of the Supreme Court.
B.L.R.O. JIJ984
LAWS OF BRUNEI
338 CAP. 39 Companies
FORM X Fee $10.00 -
COMPANIES ACT, CAP. 39
Particulars of directors or managers and of any changes therein
PURSUANT TO SECTION 143
Presented by ...................................................................................................
Particulars of the directors or managers (a) of ...................................................
.......... company, ................................................ .. ..... and of any changes therein.
The Other
present
Any Nationality business
name or
names
former or origin
name or Nation- (if other
Usual residental
occupation
or director- Changes
names ality than the ships, if any. (d)
present If none nationality) state so
(c)
(Signature) .....................................................
(State whether director or manager or secretary) ........................................... Dated the ............... day of .............................. , 19......
(a) "director'' includes any pefiun who occupies the position of a director by whatever name caUed 1 and any person in accordance with whose directions or instructions the directors of a company are accustomed to act.
(b) In the case- of a corporation its corporate name and registered or prin"'ipal office should be shown.
(c) Tn the case of an individual who has no business occupation hut holds any or other directorship or directorships, paniculars of that directorship or of some one of those directorships muJtt be entered,
(d) A complete list of the directors or managers shown us existing in the last particulars delivered should always he given. A note of the changes since the iast list should be made in this column, e.g" by placing against a new director s name rhc wordg: ..in place of " and by writing against any former director's name tbe words ..dead", "rc!.igned", or as the ase may be.
LAWS OF BRUNEI
Companies CAP. 39 339
FORM XI
COMPANIES ACf, CAP. 39
Notice to dissenting shareholders
PURSUANT TO SECTION 153 (1)
re (a} ....................................................................................................
....................................... ......................................... Berhad.
Notice by (b) ............................................................................................
............................................. ................................. Berhad
To (c) ............................................................................................................
Whereasonthe ............ dayof ...................., 19...... (b) ................................... .. made an offer to all the holders of (d) ............................................................. shares in (a) .......................................................... (state shortly the nature of theoffer) ................................................... andwhereasuptothe ............... day of .................................................... , 19......, being a date within 4 months of the date of the making thereof such offer was approved by the holders of not less than nine-tenths in value of the (d)
.........................................................................................shares in the said company.
Now therefore the said (b)
in pursuance of the provisions of section 153 of the Companies Act, hereby gives you notice that the said (b) ............................................................ desires to ac- quire the (d) .............................................................................................
................. .. ................ shares in the said (a) ...............................................
................................... held by you.
And further take notice that unless upon an application made to the Court by you the said (c) .......................................................................................................... on or before the .................. day of ........................................................ , 19...... being one month from the date of this notice, the Court thinks fit to order otherwise, the said (b) .......................................................................................................... will be entitled and bound to acquire the (d) ........................................................... shares held by you in the said (a) ......................................................................... on the terms of the above-mentioned offer approved by the approving (d) .................................................................. shareholders in the said company.
(Signature) ................................................. for(b) .......................................................
State whether director or manager or secretary) ............................................
Dated the ............... day of .............................., 19......
"l Name of transferor company.
b Name of transferee company.
c Name and address of dissenting shareholder.
) If the offer is limited to a certain class or classes of shareholders insert particulars of the shares.
B.L.R.O. 111984
LAWS OF BRUNEI
340 CAP. 39 Companies
FORM XII Fee $10.00 -
COMPANIES ACT. CAP. 39
Receiver or manager's abstract of receipts, and paymenl.\'
PURSUANT TO SECTION 2!!6
Name of company ............................................................................................ Name and address of receiver or manager ............................................................. .
Period covered by the abstract ..... . . ... ............ {
From ....................................
To ........................................
Presented by ...................................................................................................
ABSTRACr
RECEIPTS | PAYMENTS |
Brought forward ..................... $ | Brought forward .................... $ The receipts and payments must severally be added up at the foot of each sheet and the totals carried forward from one abstract to another without any intermediate ba lance so that the gross totals shall represent the total amounts received and paid by the receiver or manager since the date of appointment). |
Carried forward ...................... $ | Carried forward ...................... $ |
(Signature) ... . . ....... .. ............................... ...................................... Dated the ...............day of ............................ 19......
LAWS OF BRUNEI
Companies CAP. 39 341
Rule
TWELFTH SCHEDULE
COMPANIES (WINDING-UP) RULES ARRANGEMENT OF RULES
PRELIMINARY
[sec. 324]
1. Citation and application
2. Interpretation of terms
3. Use of forms in Appendix
COURT AND CHAMBERS
4. Office of Registrar in the Court
5. Matters in Court to be heard in Court and chambers
6. Applications in chambers
7. Motions and summonses
8. Times for holding Court
PROCEEDINGS
9. Title of proceedings
10. Written or printed proceedings
11. Process to be sealed
12. Issue of summonses
13. Orders
14. File of proceedings in office of Registrar
15. Office copies
16. Inspection of file
17. Use of file by Official Receiver
18. Defacement of stamps
SERVICE AND EXECUTION OF PROCESS AND ENFORCEMENT OF ORDERS
19. Duties of bailiff
20. Service
21. Enforcement of orders
22. Form of petition
PETITION
23. Presentation of petition
24. Advertisement of petition
25. Service of petition
26. Verification of petition
27. Copy of petition to be furnished to creditor or contributory
B.L.R.O. 111984
LAWS OF BRUNEI
342 CAP. 39 Companies
PROVISIONAL LIQUIDATOR -
28. Appointment of provisional liquidator
HEARING OF PETITIONS AND ORDERS MADE THEREON
29. Attendance before hearing to show compliance with rules
30. Notice by persons who intend to appear
31. List of names and addresses of persons who appear on the peti
tion
32. Affidavits in opposition and reply
33. Substitution of creditor or contributory for withdrawing petition
er
ORDER TO WIND UP A COMPANY
34. Notice that winding-up order has been pronounced to be given to
Official Receiver
35. Drawing up and contents of winding-up order
36. Transmission and advertisement of winding-up order
SPECIAL MANAGER
37. Appointment of special manager
38. Accounting by special manager
STATEMENT OF AFFAIRS
39. Preparation of statement of affairs
40. Extension of time for submitting statement of affairs
41. Information subsequent to statement of affairs
42. Default
43. Expenses of statement of affairs
44. Dispensing with statement of affairs
APPOINTMENT OF LIQUIDATOR IN A WINDING UP BY THE COURT
45. Appointment of liquidator on report of meetings of creditors and contributories
NOTICE OF APPOINTMENT OF LIQUIDATOR
46. Notice of appointment of liquidator
SECURITY BY LIQUIDATOR OR SPECIAL MANAGER IN A WINDING UP BY THE COURT
47. Security to satisfaction of Official Receiver
48. Failure to give or keep up security
LAWS OF BRUNEI
Companies CAP. 39 343
PUBLIC EXAMINATION
49. Report of Official Receiver to be filed
50. Appointment of time for consideration of report
51. Consideration of report
52. Order for public examination
53. Application for day for holding examination
54. Appointment of time and place for public examination
55. Notice of public examination to creditors and contributories
56. (1) Default in attending
(2) Warrants of arrest
57. Notes of examination to be filed
PROCEEDINGS BY OR AGAINST DIRECTORS, PROMOTERS, AND OFFICERS
58. Application by or against delinquent directors, officers and promoters
59. Use of depositions taken at public examinations
WITNESSES AND DEPOSITIONS
60. Shorthand notes
61. Committal of contumacious witness
62. Depositions at private examinations
63. Disclaimer
DISCLAIMER
VESTING OF DISCLAIMED PROPERTY
64. Vesting of disclaimed property
- ARRANGEMENTS WITH CREDITORS AND
CONTRIBUTORIES IN A WINDING UP BY THE COURT
65. Report by Official Receiver on arrangements and compromises
COLLECTION AND DISRIBUTION OF ASSETS IN A WINDING UP BY THE COURT
66. Collection and distribution of company's assets by liquidator
67. Power of liquidator to require delivery of property
B.L.R. 0. 111984
LAWS OF BRUNEI
344 CAP. 39 Companies
LIST OF CONTRIBUTORIES IN A WINDING UP BY THE COURT
68. Liquidator to settle list of contributories
69. Appointment of time and place for settlement of list
70. Settlement of list of contributories
71. Notice of contributories
72. Application to the Court to vary the list
73. Variation of or addition to list of contributories
74. Calls by liquidator
CALLS
75. Application to the Court for leave to make a call
76. Document making the call
77. Service of notice of call
78. Enforcement of call
79. Proof of debt
80. Mode of proof
81. Verification of proof
82. Contents of proof
83. Statement of security
PROOFS
84. Proof before whom sworn
85. Costs of proof
86. Discount
87. Periodical payments
88. Interest
89. Proof for debt payable at a future time
90. Workmen's wages
91. Production of bills of exchange and promissory notes
92. Transmission of proofs to liquidator
ADMISSION AND REJECTION OF PROOF AND PREFERENTIAL CLAIMS, AND APPEAL TO THE COURT
93. Notice to creditors to prove
94. Examination of proof
95. Appeal by creditor
96. Expunging at instance of liquidator
97. Expunging at instance of creditor
98. Oaths
99. Official Receiver's powers
100. Filing proof by Official Receiver
101. Proofs to be filed
LAWS OF BRUNEI Companies | CAP. 39 | 345 | |
102. | Procedure where creditor appeals | ||
103. | Time for dealing with proofs by Official Receiver | ||
104. | Time for dealing with proofs by liquidator | ||
105. | Cost of appeals from decision as to proofs |
GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES IN RELATION TO A WINDING UP BY THE COURT
106. First meeting of creditors and contributories
107. Notice of first meetings
108. Summoning of first meetings
109. Form of notices of first meetings
110. Notice of first meetings to officers of company
111. Summary of statement of affairs
GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES IN RELATION TO A WINDING UP BY THE COURT AND OF CREDITORS IN RELATION TO A
CREDITORS VOLUNTARY WINDING UP
112. Liquidator's meeting of creditors and contributories
113. Application of rules as to meetings
114. Summoning of meetings
115. Proof of notice
116. Place of meetings
117. Costs of calling meeting
118. Chairman of meeting
119. Ordinary resolution of creditors and contributories
120. Copy of resolution to be filed
121. Non-reception of notice by a creditor
122. Adjournment
123. Quorum
124. Creditors entitled to vote
125. Cases in which creditors may not vote
126. Votes of secured creditors
127. Creditor required to give up security
128. Admission and rejection of proofs for purpose of voting
129. Statement of security
130. Minutes of meeting
PROXIES IN RELATION TO A WINDING UP BY THE COURT, AND TO MEETINGS OF CREDITORS IN A CREDITORS VOLUNTARY WINDING UP
131. Proxies
132. Form of proxies
B.L.R.O. /11984
LAWS OF BRUNEI
346 CAP. 39 Companies
133. Forms of proxy to be sent with notices -
134. General proxies
135. Special proxies
136. Solicitation by liquidator to obtain proxies
137. Proxies to Official Receiver or liquidator
138. Holder of proxy not to vote on matter in which he is financially
interested
139. Lodgment of proxies
140. Use of proxies by deputy
141. Filling in where creditor blind or incapable
DIVIDENDS IN A WINDING UP BY THE COURT
142. Dividends to creditors
143. Return of capital to contributories
ATTENDANCE AND APPEARANCE OF PARTIES
144. Attendance at proceedings
145. Attendance of liquidator's solicitor
LIQUIDATOR AND COMMITTEE OF INSPECTION
146. Remuneration of liquidator
147. Limit of remuneration
148. Dealings with assets
149. Restriction on purchase of goods by liquidator
150. Committee of inspection not to make profit
151. Costs of obtaining sanction of court
152. Sanction of payments to committee
153. Discharge of costs before assets handed to liquidator
154. Resignation of liquidator
155. Office of liquidator vacated by his insolvency
PAYMENTS INTO AND OUT OF A BANK
156. Payments out of bank
157. Special bank account
158. Record of proceedings
159. Cash Book
BOOKS
INVESTMENT OF FUNDS
160. Investment of assets in securities and realisation of securities
LAWS OF BRUNEI
Companies CAP. 39 347
ACCOUNTS AND AUDIT IN A WINDING UP BY THE COURT
161. Audit of Cash Book
162. Official Receiver's audit of liquidator's accounts
163. Liquidator carrying on business
164. Copy of accounts to be filed
165. Summary of accounts
166. Affidavit of no receipts
167. (1) Proceedings on resignation, &c. of liquidator
(2) Disposal of books
168. Expenses of Sales
TAXATION OF COSTS
169. Taxation of costs payable by or to Official Receiver or liquidator or by Company
170. Notice of appointment
171. Lodgment of bill
172. Copy of the bill to be furnished
173. Applications for costs
174. Certificate of taxation
175. Certificate of employment
176. Costs and taxation
177. Review of taxation and appeals thereon
COSTS AND EXPENSES PAYABLE OUT OF THE ASSETS OF THE COMPANY
178. Liquidator's charges
179. Costs payable out of the assets
STATEMENTS BY LIQUIDATOR TO THE REGISTRAR OF COMPANIES
180. Conclusion of winding up
181. Times of sending liquidator's statements, and regulations applic
able thereto
182. Affidavit of no receipts or payments
UNCLAIMED FUNDS AND UNDISTRIBUTED ASSETS IN THE HANDS OF A LIQUIDATOR
183. Payment of undistributed and unclaimed money into companies liquidation account
184. Liquidator to furnish information to Official Receiver
185. Official Receiver may call for verified accounts
186. Application to the Court for enforcing an account, and getting in money
B.L.R.O. 111984
LAWS OF BRUNEI
348 CAP. 39 Companies
187. Application for payment out by person entitled
188. Application by liquidator for payment out
RELEASE OF LIQUIDATOR IN A WINDING UP BY THE COURT
189. Proceedings for release of liquidator
190. Disposal of books and papers
191. Appointment
192. Removal
OFFICIAL RECEIVERS
193. Personal performance of duties
194. Assistant Official Receivers
195. Power of certain officers and Official Receivers' clerks in certain cases to act for Official Receivers
196. Duties where no assets
197. Accounting by Official Receiver
198. Official Receiver to act for committee of inspection where no committee of inspection appointed
199. Appeals from Official Receiver
200. Applications under sections 189 and 262 (3) of the Act
BOOKS TO BE KEPT AND RETURNS BE MADE BY OFFICERS OF THE COURT
201. Books to be kept by officers of the Court
GAZETIING IN A WINDING UP BY THE COURT
202. Gazetting notices
203. Filing memorandum of Gazette notices
ARRESTS AND COMMITMENTS
204. To whom warrants may be addressed
205. Prison to which person arrested on warrant is to be taken
206. Prison to which a person arrested is to be conveyed and produc
tion and custody of persons arrested
MISCELLANEOUS MATIERS
207. Disposal of monies received after execution
208. Enlargement or abridgment of time
209. Formal defect not to invalidate proceedings
210. Application of existing procedure
LAWS OF BRUNEI
- Form
Companies CAP. 39 349
FORMS IN APPENDIX
Subject Matter
Rule
12.
13.
Notification to Official Receiver of Winding-up Order 34
Notification to Official Receiver of Order pronounced for appointment of Provisional Liquidator prior to
14.
15.
16.
17.
18.
19.
20.
Winding-up Order being made ........................... Order for Winding up by the Court ........................ Order for Winding up subject to Supervision ............ Notice of Order to Wind up (for Newspaper) ............ Affidavit of Special manager verifying Account ......... Notice to Creditors of First Meeting ....................... Notice to Contributories of First Meeting ................ Notice to Directors and Officers of Company to attend
34
35
36 (2)
36 (1)
38
109
109
21.
First Meeting of Creditors or Contributories ......... 110
Memorandum of Proceedings at adjourned First Meet-
ing ............................................................... 123 (2)
22. List of Creditors or Contributories present-to be
used at every Meeting .................... .................. 130
23. | Statement of Affairs ........................................... | 39 |
24. | Report of Result of Meeting of Creditors or Contribu- | |
tories ........................................................... | 45 | |
25. | Order appointing Liquidator ................................ | 45 |
26. | Certificate that Liquidator or Special Manager has | |
given Security .................. ............................. . | 47 | |
27. | Advertisement of Appointment of Liquidator .......... | 45 |
28. | Notice to Registrar of Companies of Appointment of | |
Liquidator .................. ................................... | 46 | |
29. | Order directing a Public Examination ..................... | 50-52 |
30. | Order appointing a Time and Public Examination ..... | 54 |
31. | Notice to attend Public Examination ...................... | 54 |
32. | Application for Appointment of Shorthand Writer to | |
take down notes of Public Examination and Order | ||
thereon ........................................................ | 60 |
B.L.R.O. lll984
LAWS OF BRUNEI
350
33. Declaration by Shorthand Writer ...........................
34. Notes of Public Examination where a Shorthand Wri- ter is appointed ..............................................
35. Notes of Public Examination where a Shorthand Wri-
ter is not appointed .........................................
36. Report to the Court where Person examined refuses to answer to satisfaction of Registrar or Officer .........
37. Order on Person to attend at Chambers to be ex- amined .........................................................
38. Warrant against Person who fails to attend Examina- tion .............................................................
60
57
57
61 (section
207)
56
38A. Order directing issue of Warrant of Arrest ............... 56 (2)
39. Disclaimer .......................................................
40. Notice of Disclaimer of Lease ...............................
41. Notice by Liquidator requiring Payment of Money or
Delivery of Books &c to Liquidator ....................
42. Provisional List of Contributories, to be made out by
Liquidator .....................................................
43. Notice of Contributories of Appointment to settle List of Contributories ........................................... .
44. Affidavit of Postage of Notices of Appointment to set- tle List of Contributories ..................................
45. Certificate of Liquidator of Final Settlement of the List of Contributories ............................................
46. Notice to Contributory of Final Settlement of List of
Contributories and that his name is included .........
47. Supplemental List of Contributories .......................
48. Affidavit of Service of Notice to Contributory ...........
49. Order on Application to vary List of Contributories ...
50. Notice to each member of Committee of inspection of
Meeting for sanction to Proposed Call .................
51. Advertisement of Meeting of Committee of Inspection to sanction Proposed Call .................................
52. Resolution of Committee of Inspection sanctioning
Call .............................................................
53. Notice of Call sanctioned by Committee of Inspection, to be sent to Contributory .................................
54. Summons for Leave to make a Call ........................
55. Affidavit of Liquidator in support of Proposal for Call
56. Advertisement of Application for Leave to make a
Call .............................................................
57. Order giving Leave to make a Call .........................
58. Document making a Call .....................................
59. Notice to be served with the Order sanctioning a Call
63
63
67
28
69
69
70
71
73
71
72
74 (1)
74 (2)
74 (4)
77
75
75
75
75
76
77
LAWS OF BRUNEI
Companies CAP. 39 351
60.
61.
62.
63.
64.
65.
66.
67.
68.
Affidavit in support of Application for Order for Pay- ment of Call ................................................... Order for Payment of Call due from a Contributory ... Affidavit of service of Order for Payment of Call ....... Proof of Debt General Fonn ................................ Proof of Debt of Workmen .............. . ......... ........ Notice of Rejection of Proof of Debt ...................... List of Proofs, to be filed ......................................
Notice to Creditors of Intention to declare Dividend
Certified List of Proofs and Applications for issue of
78
78
78
79-84
90
94
101
142
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
Cheques for Dividend ...................................... 142
Certified List of Proofs-Special Bank Case ............. 142
Notice to Persons claiming to be Creditors of Intention
to declare Final Dividend .................................. 142
Notice of Dividend ............................................. 142 (3) Authority to Liquidator to pay Dividend to another
Person .......................................................... 142 (7) Notice of Return to Contributories ........................ 143
Schedule or List of Contributories holding Paid-up
Shares to whom a Return is to be paid .................. 143
Notice of Meeting. General Form .......................... 114
Affidavit of Postage of Notices of Meeting ............... 115
Certificate of Postage of Notices. General ................ 115
Memorandum of Adjournment of Meeting .............. 122
Authority to Deputy to act as Chairman of Meeting
and use Proxies .............................................. 118
General Proxy ................................................... 132
Special Proxy .................................................... 132
Application to Official Receiver to authorise a Special
Bank Account ................................................ 157
Order of Official Receiver for Special Bank Account 157
Certificate and Request by Committee of Inspection as
to Investment of Funds ..................................... 160
Request by Committee of Inspection to Official Re-
ceiver to realise Investment ............................... 160
Certificate by Committee of Inspection as to Audit of
Liquidators Accounts ...................................... 161
Statutory Declaration verifying Liquidator's Account
under section 188 ............................................ 162
Liquidator's Trading Account under section 196 ....... 163
Statutory Declaration verifying Liquidator's Trading
Account under section 188 ................................. 163
Request to deliver Bill for Taxation ........................ 169
Certificate of Taxation ........................................ 174
B.L.R.O. 111984
LAWS OF BRUNEI
352 CAP. 39 Companies
92. Statement of Receipt and Payments and General
Directions as to Statements ............................... 181-182
93. Affidavit verifying Statement of Liquidators Account
under section 269 .................. .......................... 181, 18;2
94. Liquidators Trading Account under section 269 ........ 181, 185
95. List of Dividends or Composition .......................... 181, 185
96. List of Amounts Paid or Payable to Contributories .... 181, 185
97. Affidavit verifying Account of Unclaimed and Undis
tributed Funds ............................................... 184
98. Notice to Creditors and Contributories of intention to apply for Release ............................................ 189
99. Application by Liquidator to the Court for Release .... 189
100. Statement to accompanying Notice of Application for
Release ............................................ . ........... 189
101. Register of Winding-up Orders to be kept in the
Court ........................................................... 201
102. Register of Petitions to be kept in the Court ............. 201
103. Notices for Gazette ........................................ . .... 202
(1) Notice of Winding-up Order. (2) Notice of First Meetings.
(3) Notice of Day appointed for Public Ex- amination.
(4) Notice of intended Dividend.
(5) Notice of Dividend.
(6) Notice of Return to Contributories. (7) Notice of Appointment of Liquidator. (8) Notice of Removal of Liquidator.
(9) Notice of Release of Liquidator.
104. Memorandum of Advertisement of Gazetting ........... 203
105. Certificate of receipt for money paid into Companies
Liquidation Account ....................................... 183 (4)
RULES
Citation and 1. (1) These rules may be cited as the Companies (Winding-up)
application Rules.
(2} Subject to the limitation hereinafter mentioned these rules shall apply to the proceedings in every winding up of a company under the Act. Rules which from their nature and subject matter are, or which by the head lines above the group in which they are contained or by their terms are made applicable only to the proceedings in a winding up by the Court, or only to such proceedings in a creditors voluntary wind ing liP shall not apply to the proceedings in a voluntary winding up, or as the case may be in a members' voluntary winding up whether any such
LAWS OF BRUNEI
Companies CAP. 39 353
voluntary winding up is or is not being continued under the supervision of the Court.
2. In these rules - Interpreta
tion
"Act" means the Companies Act;
"bailiff" means the bailiff of the Court and includes an assis
tant bailiff;
"company" means a company which is being wound up, or against which proceedings to have it wound up have been commenced;
"Court" means the Supreme Court for Brunei and includes any judge thereof;
"creditor" includes a corporation, and a firm of creditors in partnership;
"form" means a form in the Appendix to these rules; "gazetted" means published in the Gazette;
"liquidator" includes an Official Receiver when acting as liquidator;
"Official Receiver" includes any officer appointed by the Minister to discharge the duties of Official Receiver under the Act and includes a deputy official receiver so appointed;
"proceedings" means the proceedings in the winding up of a company under the Act;
"Registrar" means the Chief Registrar of the Court and in
cludes a deputy registrar;
"rules" means these rules, and includes the prescribed forms;
"sealed" means sealed with the seal of the Court;
"taxing officer" means the officer of the Court whose duty it is to tax costs in the proceedings of the Court under its ordin ary jurisdiction.
3. The forms in the Appendix, where applicable, and where they are Useofforms not applicable forms of the like character, with such variations as cir- in Appendix cumstances may require, shall be used. Where such forms are applicable
any costs occasioned by the use of any other or more prolix forms shall be borne by or disallowed to the party using the same, unless the Court shall otherwise direct.
B.L.R.O.l/1984
LAWS OF BRUNEI
354
Office of Registrar in the Court
Matters in Court to be heard in Court and chambers
COURTS AND CHAMBERS -
4. (1) All proceedings in the winding up of companies in the Court shall be attached to the Registrar, who shall, together with the necessary clerks and officers, and subject to the Act and rules, under the general or special directions of a judge.
(2) In every cause or matter within the jurisdiction of a judge, whether by virtue of the Act or otherwise, the Registrar shall, in addi tion to his powers and duties under the rules, have all the powers and duties of a Master, Registrar, or Taxing Master.
5. (1) The following matters and applications in the Court shall be heard before a judge in open Court -
(a) petitions;
(b) appeals to the Court from the Official Receiver when acting as Official Receiver and not as liquidator;
(c) applications under section 275 of the Act;
(d) applications by the Official Receiver or liquidator under subsection (3) of section 269 of the Act, or an appeal thereunder;
(e) applications for the commital of any person to prison for contempt;
(f) public examinations;
(g) applications under subsection (1) of section 262 of the
Act;
(h) applications to rectify the Registrar; and
(i) such matters and applications as a judge may from time to time by any general or special orders direct to be heard before him in open Court.
(2) Examinations of persons summoned before the Court under section 206 of the Act, shall be held in Court or in chambers as the Court shall direct.
(3) Every other matter or application in the Court under the Act to which the rules apply may be heard and determined in chambers.
LAWS OF BRUNEI
Companies CAP. 39 355
6. Subject to the provisions of the Act and rules
(a) the Registrar may under the general or special direc- pplications tions of a judge hear and determine any application or matter m chambers which under the Act and rules may be heard and determined
in chambers;
(b) any matter or application before the Registrar may at any time be adjourned by him to be heard before a judge; and
(c) any matter or application may, if a judge thinks fit, be adjourned from chambers to Court, or from Court to cham bers.
7. (1) Every application in Court other than a petition, shall be Motions and made by motion, notice of which shall be served on every person against = nses whom an order is sought, not less than 2 clear days before the day
named in the notice for hearing the motion.
(2) Every application in chambers shall be made by summons, which, unless otherwise ordered, shall be served on every person against whom an order is sought, and shall require the person or persons to whom the summons is addressed to attend at the time and place named in the summons.
(3) Every application by the liquidator to the Court for direc tions in relation to any particular matter arising under the winding up shall be made in chambers.
8. Subject to the provisions of the Act the times of the sitting of the Times for
Court in matters of the winding up of companies shall be those w.hich hcolditng
are appointed for the transaction of the general business of the Court,
unless a judge shall otherwise order.
- PROCEEDINGS
9. (1) Every proceeding in a winding-up matter shall be dated, and Titleofpro-
shall, with any necessary additions, be intituled as follows- ceedings
IN THE SUPREME COURT OF BRUNEI DARUSSALAM.
COMPANIES (WINDING-UP). No. OF19
In the Matter of the Companies Act, Cap. 39.
B.L.R.O. 111984
LAWS OF BRUNEI
356
CAP. 39 Companies
and in the matter of the company to which it relates. Numbers and dates may be denoted by figures.
(2) The first proceeding in every winding-up matter shall have a distinctive number assigned to it in the office of the Registrar, and all proceedings in any matter subsequent to the first proceeding shall bear the same number as the first proceeding.
Written or printed pro ceedings
Process to be sealed
Issue of sum
monses
Orders
File of pro ceedings in office of Reg istrar
Office copies
10. All proceedings shall be written or printed, or partly written or partly printed, on paper of the size of 13 inches in length and 8 inches in breadth, or thereabouts, and must have a stitching margin; but no objection shall be allowed to any proof or affidavit on account only of its being written or printed on paper of other size.
11. All orders, summonses, petitions, warrants, process of any kind (including notices when issued by the Court) and office copies in any winding-up matter shall be sealed.
12. Every summons in a winding-up matter in the Court shall be prepared by the applicant or his solicitor, and issued from the office of the Registrar. A summons, when sealed, shall be deemed to be issued.
13. Every order, whether made in Court or in chambers, in the wind ing-up of a company shall be drawn up by the applicant or his solicitor and signed by the Registrar, unless in any proceeding, or classes of proceedings, the judge or Registrar who makes the order shall direct that no order need be drawn up. Where a direction is given that no order need be drawn up, the note or memorandum of the order, signed or initialled by the judge or the Registrar making the order, shall be sufficient evidence of the order having been made.
14. All petitions, affidavits, summonses, orders, proofs, notices, de positions, bills of costs and other proceedings in the Court in a winding up matter shall be kept and remain of record in the office of the Reg istrar and, subject to the directions of the Court, shall be placed in one continuous file.
15. All office copies of petitions, affidavits, depositions, papers and writings, or any parts thereof, required by the Official Receiver or any liquidator, contributory, creditor, officer of a company, or other person entitled thereto, shall be provided by the Registrar, and shall, except as to figures, be fairly written out at length, and be sealed and delivered out without any unnecessary delay, and in the order in which they shall have been bespoken.
'
LAWS OF BRUNEI
Companies CAP. 39 357
16. Every person who has been a director or officer of a company Inspection of which is being wound up. shall be entitled, free of charge. and every file contributory and every creditor whose claim or proof has been admitted
shall be entitled on payment of a fee of one dollar for each inspection
per day, at all reasonable times, to inspect the file of proceedings and to take copies or extracts from any documents therein, or to be furnished with such copies or extracts upon payment of $2.00 per page or part thereof.
17. Where, in the exercise of his functions under the Act or rules, the Official Receiver requires to inspect or use the file of proceedings the Registrar shall (unless the file is at the time required for use in Court or by him) on request. transmit the file of proceedings to the Official Receiver, and the Registrar may, in his discretion, permit the Official Receiver to retain in his custody for such time as the Registrar may think fit any file or files of proceedings.
Use of file by Official Re ceiver
18. Every officer of the Court who shall receive any document to Defacement
which an adhesive stamp shall be affixed, shall immediately upon receipt of stamps
of the document deface the stamp thereon and no such document shall be filed or delivered until the stamp thereon shall have been so defaced.
SERVICE AND EXECUTION OF PROCESS AND ENFORCEMENT OF ORDERS
19. (1) It shall be the duty of the bailiff to serve such orders, sum monses. petitions and notices as the Court may require him to serve; to execute warrants and other process; to attend any sittings of the Court if so required by the Court (but not sittings in chambers); and to do and perform all such things as may be required of him by the Court.
Duties of bailiff
(2) Nothing in this rule shall require any order, summons, peti
tion, or notice to be served by a bailiff or officer of the Court which is
- not specially by the Act or rules required to be so served, unless the
Court in any particular proceeding by order specially so directs.
20. (1) All notices, summonses, and other documents other than Service
those of which personal service is required, may be sent by prepaid post
letter to the last known address of the person to be served therewith; and the notice, summons, or document shall be considered as served at the time that the same ought to be delivered in the due course of post by the post office, and notwithstanding the same may be returned by the post office.
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LAWS OF BRUNEI
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(2) No service shall be deemed invalid by person that the name, or any of the names other than the surname of the person to be served, has been omitted from the document containing the person's name, provided that the Court is satisfied that in other respects the service of the document has been sufficient.
Enforcement of orders
Form of Peti
tion.
Forms2 and 3
Presentation of petition
Advertise ment of peti tion.
Form4
21. Every order of the Court made in the exercise of the powers conferred by the Act and rules, may be enforced by the Court as if it was a judgment or order of the Court made in the exercise of its ordinary jurisdiction.
PETITION
22. Every petition for the winding up of a company by the Court, or subject to the supervision of the Court, shall be in Forms 2 and 3.
23. A petition shall be presented at the office of the Registrar, who shall appoint the time and place at which the petition is to be heard. Notice of the time and place appointed for hearing the petition shall be written on the petition and sealed copies thereof, and the Registrar may at any time before the petition has been advertised, alter the time appointed, and fix another time.
24. Every petition shall be advertised 7 clear days or such longer time as the Court may direct before the hearing, as follows
(a) in the case of a company whose registered office or if there shall be no such office, then whose principal or last known principal place of business is or was situate within Brunei once in the Gazette, and once at least in such news paper or newspapers as the Court directs;
(b) in the case of any other company, once in the Gazette, and twice at least in a local newspaper or the principal or last known principal place of business, as the case may be, of such company is or was situate, or in such other newspaper as shall be directed by the Court; and
(c) the advertisement shall state the day on which the peti tion was presented, and the name and address of the peti tioner, and of his solicitor and shall contain a note at the foot thereof, stating that any person who intends to appear on the hearing of the petition, either to oppose or support, must
LAWS OF BRUNEI
Companies CAP. 39 359
send notice of his intention to the petitioner, or to his solici tor within the time and in the manner prescribed by rule 30, and an advertisement of a petition for the winding up of a company by the Court which does not contain such a note shall be deemed irregular.
And if the petitioner or his solicitor does not within the time hereby prescribed or within such extended time as the Registrar may allow duly advertise the petition in the manner prescribed by this rule the appoint ment of the time and place at which the petition is to be heard shall be cancelled by the Registrar and the petition shall be removed from the file unless a Judge or the Registrar shall otherwise direct.
25. Every petition shall, unless presented by the company, be served upon the company at the registered office, if any, of the company, and if there is no registered office, then at the principal or last known principal place of business of the company, if any such can be found, by leaving a copy with any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by leaving a copy at such registered office or principal place of business, or by serving it on such member, officer, or servant of the company as the Court may direct; and where the company is being wound up voluntari ly, the petition shall also be served upon the liquidator (if any), appointed for the purpose of winding up the affairs of the company.
26. Every petition of the winding up of a company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit referring thereto. Such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by a corporation, by some director, secretary, or other prin cipal officer thereof, and shall be sworn after and filed within 4 days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition.
27. Every contributory or creditor of the company shall be entitled to be furnished immediately by the petitioner or his solicitor with a copy of the petition, upon payment of $2.00 per page or part thereof.
PROVISIONAL LIQUIDATOR
28. (1) After the presentation of a petition, upon the application of a creditor, or of a contributory, or of the company, and upon proof by affidavit of sufficient grounds for the appointment of a provisional
Service of petition. Forms 5 and 6
Verification of petition. Forms 7
and 8
Copy of peti tion to be furnished to creditor or contributory
Appointment of provisional liquidator
XI B.L.R.O.l/1984
LAWS OF BRUNEI
360
liquidator, the Court, if it thinks fit, and upon such terms as in the opinion of the Court shall be just and necessary, may make the appoint ment.
Form9
(2) The order appointing the provisional liquidator shall bear the number of the petition, and shall state the nature and a short description of the property of which the provisional liquidator is ordered to take possession, and the duties to be performed by the provisional liquidator.
(3) Subject to any order of the Court, if no order for the winding -
up of the company is made upon the petition, or if an order for the
winding up of the company on the petition is rescinded, or if all proceed ings on the petition are stayed, or if an order is made containing the voluntary winding up of the company subject to the supervision of the Court, the provisional liquidator shall be entitled to be paid, out of the property of the company, all the costs charges, and expenses properly incurred by him as provisional liquidator, including such sum as is or would be payable under the scale of fees in force for the time being where the Official Receiver is appointed provisional liquidator, and may retain out of such property the amounts of such costs, charges, ex penses, and fees.
(4) Where any person other than the Official Receiver has been appointed provisional liquidator and the Official Receiver has taken any steps for the purpose of obtaining a statement of affairs or has per formed any other duty prescribed by these rules the provisional liquida tor shall pay the Official Receiver such sum, if any, as the Court directs.
HEARING OF PETITIONS AND ORDERS MADE THEREON
Attendance before hear ing to show compliance with rules
Notice by persons who mtend to appear
29. After a petition has been presented, the petitioner, or his solici tor, shall, on a day to be appointed by the Registrar, attend before the Registrar and satisfy him that the petition has been duly advertised, that the prescribed affidavit verifying the statements therein and the affidavit of service (if any) have been duly filed, and that the provisions of the rules as to petitions for winding-up companies have been duly complied with by the petitioner. No order for the winding up of a company shall be made on the petition of any petitioner who has not, prior to the hearing of the petition, attended before the Registrar at the time appointed, and satisfied him in manner required by this rule.
30. Every person who intends to appear on the hearing of a petition shall serve on, or send by post to, the petitioner, or his solicitor, at the address stated in the advertisement of the petition, notice of his inten-
LAWS OF BRUNEI
Companies CAP. 39 361
tion. The notice shall contain the address of such person, and shall be signed by him or his solicitor, and shall be served, or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 6 o'clock in the afternoon of the day previous to the day appointed for the hearing of the petition, of if such day be a Monday, not later than one o'clock in the afternoon of the Saturday previous to
such day. The notice shall be in Form 10 with such variations as cir- Form 1ll
cumstances may require. A person who has failed to comply with this
rule shall not, without the special leave of the Court, be allowed to
appear on the hearing of the petition.
31. The petitioner, or his solicitor, shall prepare a list of the names and addresses of the persons who have given notice of their intention to appear on the hearing of the petition, and of their respective solicitors, which shall be in Form 11. On the day appointed for hearing the peti tion a fair copy of the list (or if no notice of intention to appear has been given a statement in writing to that effect) shall be handed by the peti tioner, or his solicitor, to the Court prior to the hearing of the petition.
32. (1) Affidavits in opposition to a petition that a company may be wound up by or subject to the supervision of the Court shall be filed within 7 days, or such lor.ger time as the Court may direct, of the date on which the affidavit verifying the petition is filed and notice of the filing of every affidavit in opposition to such a petition shall be given to the petitioner or his solicitor on the day on which the affidavit is filed.
(2) An affidavit in reply to an affidavit filed in opposition to a petition shall be filed within 3 days of the date on which notice of such affidavit is received by the petitioner or his solicitor.
33. When a petitioner is not entitled to present a petition or whether so entitled or not, where he (a) fails to advertise his petition within the time by these rules prescribed or such extended time as the Registrar may allow or (b) consents to withdraw his petition, or to allow it to be dismissed, or the hearing adjourned, or fails to appear in support of his petition when it is called on in Court on the day originally fixed for the hearing thereof, or on any day to which the hearing has been adjourned, or (c) if appearing, does not apply for an order in the terms of the prayer of his petition, the Court may, upon such terms as it may think just, substitute as petitioner any creditor or contributory who in the opinion·of the Court would have a right to present a petition, and who is desirous of prosecuting the petition. An order to substitute a petitioner may, where a petitioner fails to advertise his petition within the time prescribed by these rules or consents to withdraw his petition, be made in chambers at any time.
List of names and addresses of persons who appear
on the
petition. Form 11
Affidavits in opposition and reply
Substitution of creditor or contributory for withdraw
:ng petitioner
B.L.R.0. 111984
LAWS OF BRUNEI
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Notice that winding-up order has been pro nounced to be given to Official Receiver
Forms 12 and 13
Drawing up and contents of winding-up order.
Form 14
Transmission and adver tisementof winding-up order
ORDER TO WIND UPA COMPANY
34. When an order for the winding up of a company, or for the appointment of a provisional liquidator prior to the making of an order for the winding up of the company, has been pronounced in Court, the Registrar shall, on the same day, send to the Official Receiver a notice informing him that the order has been pronounced.
The notice may be in Forms 12 and 13 respectively, with such varia
tions as circumstances may require.
35. (1) It shall be the duty of the petitioner, or his solicitor, and of all other persons who have appeared on the hearing of the petition, at latest on the day following the day on which an order for the winding up of a company is pronounced in Court, to leave with the Registrar a draft of the order and all other documents required for the purpose of enabl ing the Registrar to complete the order forthwith. It shall not be neces sary for the Registrar to make an appointment to settle the order unless in any particular case the special circumstances make an appointment necessary.
(2) An order to wind up a company or for the appointment of a provisional liquidator shall contain at the foot thereof a notice stating that it will be the duty of the person who is at the time secretary or chief officer of the company, and of such of the persons who are liable to make out or concur in making out of the company's statement of affairs as the Official Receiver may require, to attend on the Official Receiver at such time and place as he may appoint and to give him all information he may require.
36. (1) When an order that a company be wound up, or for the appointment of a provisional liquidator has been made
(a) 3 copies of the order sealed with the seal of the Court shall forthwith be sent by the Registrar to the Official Re ceiver;
(b) the Official Receiver shall cause a sealed copy of the
. , order to be served upon the company by prepaid letter addressed to it at the registered office of the company (if any), or if there is no registered office at its principal or last known principal place of business, or upon such other person or persons, and in such other manner as the Court may direct, and if the order is that the company be wound up by the Court, shall forward to the Registrar of Companies the copy of the order which by section 170 of the Act is directed
LAWS OF BRUNEI
Companies CAP. 39 363
to be so forwarded by the company, or otherwise as may be prescribed;
(c) the Official Receiver shall forthwith cause notice of the Forms 103 (I)
oder to be gazetted; and
(d) the Official Receiver shall forthwith send notice of the Form 16
order to such local paper as the Court may from time to time direct, or, in default of such direction. as he may select.
(2) An order for the winding up of a company, subject to the Form 15
supervision of the Court, shall before the expiration of 12 days from the date thereof be advertised by the petitioner. once in the Gazette, and shall be served on such persons (if any) and in such manner as the Court shall direct.
SPECIAL MANAGER
37. An application by the Official Receiver for the appointment of a special manager shall be supported by a report of the Official Receiver, which shall be placed on the file of proceedings. No affidavit by the Official Receiver in support of the application shall be required.
Appointment of special manager
38. Every special manager shall account to the Official Receiver, and the special manager's accounts shall be verified by affidavit, and, when approved by the Official Receiver. the totals of the receipts and pay ments shall be added by the Official Receiver to his accounts.
Accounting by special manager. Form 17
STATEMENT OF AFFAIRS
39. (1) Every person who under section 175 of the Act, has been required by the Official Receiver to submit and verify a statement as to the affairs of a company, shall be furnished by the Official Receiver with forms and instructions for the preparation of the statement. The state ment shall be made out in duplicate, one copy of which shall be verified by affidavit. The Official Receiver shall cause to be filed with the Reg istrar the verified statement of affairs.
Preparation of statement of affairs. Form23
(2) The Official Receiver may from time to time hold personal interviews with every such person for the purpose of investigating the company's affairs, and it shall be the duty of every such person to attend on the Official Receiver at such time and place as the Official Receiver may appoint and give the Official Receiver all information that he may require.
B.LR.O. 111984
LAWS OF BRUNEI
364
Extension of time for sub mitting state ment of affairs
Information subsequent to statement of affairs
Default
Expenses of statement of affairs
Dispensing with state ment of affairs
Appointment of liquidator on report of mcetmgsof creditors and contributor ies.
40. When any person requires any extension of time for submitting the statement of affairs, he shall apply to the Official Receiver, who may, if he thinks fit, give a written certificate extending the time, which certificate shall be filed with the proceedings in the winding up and shall render an application to the Court unnecessary.
41. After the statement of affairs of a company has been submitted to the Official Receiver it shall be the duty of each person who has made or concurred in making it, if and when required, to attend on the Official Receiver and answer all such questions as may be put to him, and give all such further information as may be required of him by the Official Receiver in relation to the statement of affairs.
42. Any default in complying with the requirements of section 175 of the Act, may be reported by the Official Receiver to the Court.
43. A person who is required to make or concur in making any state ment of affairs of a company shall, before incurring any costs or ex penses in and about the preparation and making of the statement, apply to the Official Receiver for his sanction, and submit a statement of the estimated costs and expenses which it is intended to incur; and, except by order of the Court, no person shall be allowed out of the assets of the company any costs or expenses which have not before being incurred been sanctioned by the Official Receiver.
44. (1) Any application to dispense with the requirements of section 175 of the Act shall be supported by a report of the Official Receiver showing the special circumstances which in his opinion render such a course desirable.
(2) When the Court has made an order dispensing with the re quirements of the said section, it may give such consequential directions as it may see fit and in particular it may give directions as to the sending of any notices which are by these rules required to be sent to any person mentioned in the statement of affairs.
APPOINTMENT OF LIQUIDATOR IN A WINDING UP BY THE COURT
45. (1) As soon as possible after the first meetings of creditors and contributors have been held the Official Receiver, or the chairman of the meeting, as the case may be, shall report the result of each meeting to the Court.
LAWS OF BRUNEI
Companies CAP. 39 365
(2) Upon the result of the meetings of creditors and contributor- Form 24
ies being reported to the Court, the Court may, if the meeting of credi- tors and the meeting of contributories have each passed the same resolu- tions, or if the resolutions passed at the two meetings are identical in effect, upon the application of the Official Receiver, forthwith make the appointments necessary for giving effect to such resolutions. In any other case the Court shall, on the application of the Official Receiver, fix a time and place for considering the resolutions and determinations (if any) of the meetings, deciding differences (if any), and making such order as shall be necessary.
(3) When a time and place have been fixed for the consideration of the resolutions and determinations of the meetings, such time and place shall be advertised by the Official Receiver in such manner as the Court shall direct, but so that the first or only advertisement shall be published not less than 7 days before the time so fixed.
(4) Upon the consideration of the resolutions and determina tions of the meetings the Court shall hear the Official Receiver and any creditor or contributory.
(5) If a liquidator is appointed, a copy of the order appointing him shall be transmitted by him to the Official Receiver and the Official Receiver shall, as soon as the liquidator has given security, cause notice of the appointment to be gazetted. The expense of gazetting the notice of the appointment shall be paid by the liquidator, but may be charged by him on the assets of the company.
Forms25 and
103 (7)
(6) Every appointment of a liquidator or committee of inspec tion shall be advertised by the liquidator in such manner as the Court directs immediately after the appointment has been made, and the li
- quidator has given the required security.
Form27
(7) If a liquidator in a winding up by the Court shall die, or Forms 103 (8)
resign, or be removed, another liquidator may be appointed in his place and (9)
in the same manner as in the case of a first appointment, and the Official Receiver shall, on the request of not less than one-tenth in value of the creditors or contributories summon meetings for the purpose of deter- mining whether or not the vacancy shall be filled; but none of the provisions of this rule shall apply where the liquidator is released under section 190 of the Act in which case the Official Receiver shall remain liquidator.
B.L.R.O. Jll984
LAWS OF BRUNEI
366 CAP. 39 Companies
NOTICE OF APPOINTMENT OF LIQUIDATOR -
Notice of 46. The notice of the appointment of a liquidator required by
appointment section 238 of the Act shall be in Form 28 in the Appendix.
of liquidator.
Form28
SECURITY BY LIQUIDATOR OR SPECIAL MANAGER IN A WINDING UP BY THE COURT
Security to 47. In the case of a special manager or a liquidator other than the
: :::ition of Official Receiver, the following provisions as to security shall have
Receiver. effect, namely -
Form26 (a) the security shall be given to such officers or persons, and in such manner as the Official Receiver may from time to time direct;
(b) it shall not be necessary that security shall be given in each separate winding up; but security may be given either specially in a particular winding up, or generally, to be avail able for any winding up in which the person giving security may be appointed, either as liquidator or special manager;
(c) the Official Receiver shall fix the amount and nature of such security, and may from time to time, as he thinks fit, either increase or diminish the amount of special or general security which any person has given;
(d) the certificate of the Official Receiver that a liquidator or special manager has given security to his satisfaction shall be filed with the Registrar; and
(e) the cost of furnishing the required security by a li quidator or special manager, including any premiums which he may pay to a guarantee society, shall be borne by him personally, and shall not be charged against the assets of the company as an expense incurred in the winding up.
Failure to give or keep up security
48. (1) If a liquidator or special manager fails to give the required security within the time stated for that purpose in the order appointing him, or any extension thereof, the Official Receiver shall report such failure to the Court, who may thereupon rescind the order appointing the liquidator or special manager.
LAWS OF BRUNEI
Companies CAP. 39 367
(2) If a liquidator or special manager fails to keep up his secur ity, the Official Receiver shall report such failure to the Court, who may thereupon remove the liquidator or special manager, and make such order as to costs as the Court shall think fit.
(3) Where an order is made under this rule rescinding an order for the appointment of or removing a liquidator, the Court may direct that another liquidator is to be appointed and thereupon the same meet ings shall be summoned and the same proceedings may be taken as in the case of a first appointment of a liquidator.
PUBLIC EXAMINATION
49. A report made by the Official Receiver pursuant to subsection (2) of section 176 of the Act shall state, in a narrative form, the facts and matters which the Official Receiver desires to bring to the notice of the Court, and his opinion as required by the said section.
50. The Official Receiver may apply to the Court to fix a day for the consideration of the report, and on such application the Court shall appoint a day on which the report shall be considered.
51. The consideration of the report shall be before a judge personally in chambers, and the Official Receiver shall personally, or by counsel or solicitor, attend the consideration of the report, and give the Court any further information or explanation with reference to the matter stated in the report which the Court may require.
Report of Of ficial Receiv er to be filed
Appointment of time for consideration of report
Considera
tion of report
52. An order under section 207 of the Act directing any person or Order for
persons at attend for public examination shall be in Form 29. tl -
Form29
53. Upon an order directing a person to attend for public examina
tion being made, the Official Receiver shall apply for the appointment of a day on which the public examination is to be held.
54. A day and place shall be appointed for holding the public ex amination, and notice of the day and place so appointed shall be given by the Official Receiver to the person who is to be examined by sending such notice in a registered letter addressed to his usual or last known address.
55. (1) The Official Receiver shall give notice of the time and place appointed for holding a public examination to the creditors and contri butories by advertisement in such newspapers as the Court from time to time may direct, or in default of any such direction as the Official Receiver thinks fit, and shall also cause notice of the appointment to be gazetted.
Application for day for hol in& ex ammatJOn
Appointment of time and place for pub lic examina tion. Forms30and
31
Notice of public ex amination to creditors and contributor ies.
Form 103 (3)
B.L.R. 0. 111984
LAWS OF BRUNEI
368
Default in attending. Form38
Notes of ex amination to be filed. Form 34 and
35
Application by or against delinquent directors, officers and promoters
(2) Where an adjournment of the public examination has been directed, notice of the adjournment shall not, unless otherwise directed by the Court, be advertised.
56. If any person who has been directed by the Court to attend for public examination fails to attend at the time and place appointed for holding or proceeding with the same, and no good cause is shown by him for such failure, or if before the day appointed for the examination the Official Receiver satisfies the Court that such person has absconded, or that there is reason for believing that he is about to abscond with the view of avoiding examination, it shall be lawful for the Court, upon its being proved to the satisfaction of the court that notice of the order and of the time and place appointed for attendance at the public examina tion was duly served, without any further notice, to issue a warrant for the arrest of the person required to attend, or to make such other order as the Court shall think just.
57. The notes of every public examination shall, after being signed as required by section 207 (7) of the Act, be filed with the Registrar.
PROCEEDINGS BY OR AGAINST DIRECTORS, PROMOTERS, AND OFFICERS
58. (1) An application under any of the following provisions of the
Act-
(a) section 261;
(b) subsection (1), (2) or (4) of section 260; (c) section 208;
(d) subsection (2) of section 302
shall be made by a summons returnable in the first instance in chambers, in which summons shall be stated the nature of the declaration or order for which application is made, and the grounds of the application, and which summons, unless otherwise ordered by the Court, shall be served in accordance with the provisions of orders 9, 10 and 11 of the Brunei High Court (Civil Procedure) 1970 Rules on every person against whom an order is sought, not less than 8 days before the day named in the summons for hearing the application. Where the application is made by
LAWS OF BRUNEI
Companies CAP. 39 369
the Official Receiver or liquidator he may make a report to the Court stating any facts and information on which he proceeds which are verified by affidavit, or derived from sworn evidence in the proceedings. Where the application is made by any other person it shall be supported by affidavit to be filed by him.
A copy of every report and affidavit intended to be used in support of the summons shall be served on every person against whom an order is sought not less than 4 days before the hearing of the summons.
(2) On the return of the summons the Court may give such direc tions as it shall think fit as to the taking of evidence wholly or in part by affidavit or orally, and the cross-examination either before a Judge on the hearing in Court or in chambers of any deponents to affidavits in support of or in opposition to the application and as to any report it may require the Official Receiver or liquidator to make and generally as to the procedure on the summons and for the hearing thereof.
59. Where in the course of the proceedings in a winding up by the Court an order has been made for the public examination of persons named in the order pursuant to section 207 of the Act, then in any proceedings subsequently instituted under any of the provisions of the Act mentioned in paragraph (1) of rule 58, the verified notes of the examination of each person who was examined under the order shall, subject as hereinafter mentioned, and to any order or directions of the Court as to the manner and extent in and to which the notes shall be used, and subject to all just exceptions to the admissibility in evidence against any particular person or persons of any of the statements con tained in the notes of the examinations, be admissible in evidence against any of the persons against whom the application is made, who, under section 207 of the Act, and the order for the public examination, was or had the opportunity of being present at and taking part in the examination: Provided that before any such notes of a public examina tion shall be used on any such application, the person intending to use the same shall, not less than 15 days before the day appointed for hearing the application, give notice of such intention to each person against whom it is intended to use such notes, or any of them, specifying the notes or parts of the notes which it is intended to read against him, and furnish him with copies of such notes, or parts of notes (except notes of the person's own depositions), and provided also that every person against whom the application is made shall be at liberty to cross examine or re-examine (as the case may be) any person the notes of whose examination are read, in all respects as if such person had made an affidavit on the application.
Use of de positions taken at pub lic examina tions
B.L. R.0. 111984
LAWS OF BRUNEI
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Shorthand notes.
Forms 32 and
33
Committal of contumacious witness.
Form 36
CAP. 39 Companies
WITNESSES AND DEPOSITIONS --
60. If the Court or the officer of the Court before whom any examina tion under the Act and rules is directed to be held shall in any case, and at any stage of the proceedings, be of opinion that it would be desirable that a person (other than the person before whom an examination is taken) should be appointed to take down the evidence of any person examined in shorthand or otherwise, it shall be competent for the Court or officer aforesaid to make such appointment, and every person so appointed, if not in the service of the Government, shall be paid a sum not exceeding $75 a day, and also a sum not exceeding $2.00 per part thereof for any transcript of the evidence that may be required and such sums shall be paid by the party at whose instance the appointment was made, or out of the assets of the company, as may be directed by the Court. The shorthand writer (if any) attached to the Official Receiver's office shall be deemed to be duly appointed under this rule, and it shall not be necessary to make any application to make such appointment, and a general declaration by such shorthand writer adapted from Form 33 shall be deemed to apply to all cases in which notes are taken by him as aforesaid, but this rule shall not be construed as precluding the appointment of any other person. A transcript of any such notes, purporting to be such transcript, and purporting to be signed by a shor thand writer duly appointed under this rule or by the shorthand writer attached to the Official Receiver's office, shall until the contrary is proved be sufficient evidence that the questions and answers set forth therein were so put and answered respectively.
61. (1) If a person examined before a Registrar or other officer of the Court who has no power to commit for contempt of Court, refuses to answer to the satisfaction of the Registrar or officer any question which he may allow to be put, the Registrar or officer shall report such refusal to a judge, and upon report being made the person in default shall be in the same position, and be dealt with in the same manner as if he had made default in answering before the Judge.
(2) The report shall be in writing, but without affidavit and shall set forth the question put, and the answer (if any) given by the person examined.
(3) The Registrar or other officer shall, before the conclusion of the examination at which the default in answering is made, name the time when and the place where the default will be reported to a Judge, and upon receiving the report a Judge may take such action thereon as he shall think fit. If a Judge is sitting at the time when the default in answering is made, such default may be reported immediately.
LAWS OF BRUNEI
Companies CAP. 39 371
62: (1) The Official Receiver may attend in person, or by an assistant official receiver, or by counsel or by solicitors employed for the purpose, any examination of a witness under. section 206 of the Act, on whosesoever application the same has been ordered, and may take notes of the examination for his own use, and put such question to the persons examined as the Court may al1ow.
(2) The notes of the depositions of a person examined under section 206 of the Act, or under any order of the Court before the Court, or before any officer of the Court, or person appointed to take such an examination (other than the notes of the depositions of a person examined at a public examination under section 207 of the Act) shall not be filed, or be open to the inspection of any creditor, contributory, or other person, except the Official Receiver or liquidator, or any pro visional liquidator other than the Official Receiver, while he is acting as provisional liquidator, unless and until the Court shall so direct, and the Court may from time to time give such general or special directions as it shall think expedient as to the custody and inspection of such notes and the furnishing of copies of or extracts therefrom.
DISCLAIMER
63. (1) Any application for leave to disclaim any part ofthe property of a company pursuant to subsection (1) of section 253 of the Act shall be by ex parte summons. Such summons shall be supported by an affida vit showing who are the parties interested and what their interests are. On the hearing of the summons the Court shall give such directions as it sees fit and in particular directions as to the notices to be given to the parties interested or any of them and the Court may adjourn the ap plication to enable any such party to attend.
Depositions· at private ex aminations
Disclaimer. Forms39and
40
(2) Where a liquidator disclaims a leasehold interest he shall forthwith file the disclaimer at the office of the Registrar and, when the property is situate in Brunei, register a notice thereof in the Land Office. The disclaimer shall contain particulars of the interest disclaimed and a statement of the persons to whom notice of the disclaimer has been given. Until the disclaimer is filed by the liquidator and, when the property is situate in Brunei, a notice thereof is registered in the Land Office the disclaimer shall be inoperative. A disclaimer shall be in Form 39 and a notice of disclaimer in Form 40.
(3) Where any person claims to be interested in any part of the property of a company which the liquidator wishes to disclaim he shall at the request of the liquidator furnish a statement of the interest so claimed by him.
B.L.R.O. 111984
LAWS OF BRUNEI
372
VESTING OF DISCLAIMED PROPERTY
Vesting of disclaimed property
Report by Official Re ceiver on arrangements and com promises
64. (1) Any application under subsection (6) of section 253 of the Act for an order for the vesting of any disclaimed property in or the delivery of any such property to any persons shall be supported by the affidavit filed on the application for leave to disclaim such property.
(2) Where such an application as aforesaid relates to disclaimed property of a leasehold nature and it appears that there is any mortgage by assignment or demise or under-lessee of such property, the Court may direct that notice shall be given to such mortgagee or under-lessee that, if he does not elect to accept and apply for such a vesting order as aforesaid upon the terms required by the above-mentioned subsection and imposed by the Court within a time to be fixed by the Court and stated in the notice, he will be excluded from all interest in and security upon the property and the Court may adjourn the application for such notice to be given and for such mortgagee or under-lessee to be added as a party to and served with the application and, if he sees fit, to make such election and application as is mentioned in the notice. If at the expiration of the time so fixed by the Court such mortgagee or under lessee fails to make such election and application, the Court may make an order vesting the property in the applicant and excluding such mort gagee or under-lessee from all interest in or security upon the property.
ARRANGEMENTS WITH CREDITORS AND CONTRIBUTORIES IN A WINDING UP BY THE COURT
65. In a winding up by the Court, if application is made to the Court to sanction any compromises or arrangement, the Court may, before giving its sanction thereto, hear a report by the Official Receiver as to the terms of the scheme, and as to the conduct of the directors and other officers of the company, and as to any other matters which, in the opinion of the Official Receiver, ought to be brought to the attention of the Court. The report shall not be placed upon the file, unless and until the Court shall direct to be filed.
COLLECTION AND DISTRIBUTION OF ASSETS IN A WINDING UP BY THE COURT
Collection and distribu tion of com pany's assets by liquidator
66. (1) The duties imposed on the Court by subsection (1) of section
195 of the Act, in a winding up by the Court with regard to the collection of the assets of the company and the application of the assets in dis charge of the company's liabilities, shall be discharged by the liquidator as an officer of the Court subject to the control of the Court.
LAWS OF BRUNEI
Companies CAP. 39 373
(2) For the purpose of the discharge by the liquidator of the duties imposed by subsection (1) of section 195 of the Act, and by paragraph (1), the liquidator in a winding up by the Court shall for the purpose of acquiring or retaining possession of the property of the com pany, be in the same position as if he were a receiver of the property appointed by the Court, and the Court may, on his application, enforce such acquisition or retention accordingly.
67. The powers conferred on the Court by section 196 of the Act shall be exercised by the liquidator. Any contributory for the time being on the list of contributories, trustee, receiver, banker or agent or officer of a company which is being wound up under order of the Court shall, on notice from the liquidator and within such time as he shall by notice in writing require, pay, deliver, convey, surrender or transfer to or into the hands of the liquidator any sum of money or balance, books, papers, estate or effects which happen to be in his hands for the time being and to which the company is prima facie entitled.
LIST OF CONTRIBUTORIES IN A WINDING UP BY THE COURT
68. Unless the Court shall dispense with the settlement of a list of contributories the liquidator shall with all convenient speed after his appointment settle a list of contributories of the company, and shall appoint a time and place for that purpose. The list of contributories shall contain a statement of the address of, and the number of shares or extent of interest to be attributed to each contributory and the amount called up and the amount paid up in respect of such shares or interest, and shall distinguish the several classes of contributories. As regards representative contributories the liquidator shall, so far as practicable, observe the requirements of subsection (2) of section 195 of the Act.
69. The liquidator shall give notice in writing of the time and place appointed for the settlement of the list of contributories to every person whom he proposes to include in the list, and shall state in the notice to each person in what character and for what number of shares or interest he proposes to include such person in the list, and what amount has been called up and what amount paid up in respect of such shares or interest.
70. On the day appointed for settlement of the list of contributories
. the liquidator shall hear any person who objects to being settled as a contributory, and after such hearing shall finally settle the list, which when so settled shall be the list of contributories of the company.
Power of liquidator to require deliv ery of proper ty.
Form 41
Liquidator to settle list of contri butories. Form 42
Appointment of time and place for set tlement of
list.
Forms43 and
44
Settlement of list of contri butories. Form45
B.L.R.O.I/1984
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374
Notice to contri butories. Forms46and
48
Application to the Court to vary the list.
Form49
Variation of or addition to list of contri butories. Form47
Calls by liquidator
Form 50
Form 51
71. The liquidator shall forthwith give notice to every person whom he has finally placed on the list of contributories stating in what charac ter and for what number of shares or interest he has been placed on the list and what amount has been called up and what amount paid up in respect of such shares or interest, and in the notice he shall inform such person that any application for the removal of his name from the list, or for a variation of the list, must be made to the Court by summons within
21 days from the date of the service on the contributory or alleged contributory of notice of the fact that his name is settled on the list of contributories.
72. (1) Subject to the power of the Court to extend the time or to allow an application to be made notwithstanding the expiration of the time limited for that purpose, no application to the Court by any person who objects to the list of contributories as finally settled by the liquida tor shall be entertained after the expiration of 21 days from the date of the service on such person of notice of the settlement of the list.
(2) The Official Receiver shall not in any case be personally liable to pay any costs of or in relation to an application to set aside or vary his act or decision settling the name of a person on the list of contributories of a company.
73. The liquidator may from time to time vary or add to the list of contributories, but any such variation or addition shall be made in the same manner in all respects as the settlement of the original list.
CALLS
74. The powers and duties of the Court in relation to making calls upon contributories conferred by section 199 of the Act, shall and may be exercised, in a winding up by the Court, by the liquidator as an officer of the Court subject to the proviso to section 211 of the Act, and to the following regulations
(a) where the liquidator desires to make any call on the contributories, or any of them for any purpose authorised by the Act, if there is a committee of inspection he may summon a meeting of such committee for the purpose of obtaining their sanction to the intended call;
(b) the notice of the meeting Shall be sent to each member of the committee of inspection in sufficient time to reach him not less than 7 days before the day appointed for holding the
LAWS OF BRUNEI
Companies CAP. 39 375
meeting, or such longer time as the Court may appoint, and shall contain a statement of the proposed amount of the call, and the purpose for which it is intended. Notice of the in tended call and the intended meeting of the committe·e of inspection shall also be advertised once at least in a Brunei newspaper. The advertisement shall state the time and place of the intended meeting of the committee of inspection, and that each contributory may either attend the said meeting and be heard, or make any communication in writing to the liquidator or members of the committee of inspection to be laid before the meeting, in reference to the said intended call;
(c) at the meeting of the committee of inspection any statements or representations made either to the meeting personally or addressed in writing to the liquidator or mem bers of the committee by any contributory shall be consi dered before the intended call is sanctioned;
(d) the sanction of the committee shall be given by resolu- Form 52
tion, which shall be passed by a majority of the members present; and
(e) where there is no committee of inspection, the liquida tor shall not make a call without obtaining the leave of the Court.
75. In a winding up by the Court an application to the Court for leave to make any call on the contributories of a company, or any of them, for any purpose authorised by the Act, shall be made by summons stating the proposed amount of such call, which summons shall be served 4 clear days at the least before the day appointed for making the call on every contributory proposed to be included in such call or such longer time as the Court may appoint; or if the Court so directs, notice of such intended call may be given by advertisement, without a separate notice to each contributory.
76. When the liquidator is authorised by resolution or order to make a call on the contributories he shall file with the Registrar a document in Form 58 making the call.
77. When a call has been made by the liquidator in a winding up by the Court, a copy of the resolution of the committee of inspection or order of the Court (if any), as the case may be, shall forthwith after the call has been made be served upon each of the contributories included in
Application to the Court for leave to make a.call. Forms 54 to
57
Document making the call.
Form 58
Service of notice of a call.
Forms 52. 53.
57 and 59
B.L.R.O.l/1984
LAWS OF BRUNEI
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Enforcement of call. Forms60,61 and 62
Proof of debt
Mode of proof
Verification
of proof
Contents of proof
Form 63
Statement of security
Proof before whom sworn
Costs of
proof
Discount
such call, together with a notice from the liquidator specifying the amount or balance due from such contributory in respect of such call, but such resolution or order need not be advertised unless for any special reason the Court so directs.
78. The payment of the amount due from each contributory on a call may be enforced by order of the Court, to be made in chambers on
summons by the liquidator. -
PROOFS
79. In a winding up by the Court every creditor shall prove his debt, unless a Judge in any particular winding up shall give directions that any creditors or class of creditors shall be admitted without proof.
80. A debt may be proved in any winding up by delivering or sending through the post an affidavit verifying the debt. In a winding up by the Court the affidavit shall be so sent to the Official Receiver or, if a liquidator has been appointed, to the liquidator; and in any other wind ing up the affidavit may be so sent to the liquidator.
81. An affidavit proving a debt may be made by the creditor himself or by some person authorised by or on behalf of the creditor. If made by a person so authorised, it shall state his authority and means of know ledge.
82. An affidavit proving a debt shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which the same can be substantiated. The Official Receiver or liquidator to whom the proof is sent may at any time call for the production of the vouchers.
83. An affidavit proving a debt shall state whether the creditor is or is not a secured creditor.
84. An affidavit proving a debt may in a winding up by the Court be sworn before the Official Receiver, or an assistant or deputy official receiver, or before any commissioner of oaths.
85. A creditor shall bear the cost of proving his debt unless the Court otherwise orders.
86. A creditor proving his debt shall deduct therefrom -
LAWS OF BRUNEI
Companies CAP. 39 377
(a) all trade discounts; and
(b) any discount, which he may have agreed to allow for
payment in cash, in excess of 5 his claim.
per cent on the net amount of
87. When any rent or other payment falls due at stated periods, and Periodical the order or resolution to wind-up is made at any time other than one of payments those periods, the persons entitled to the rent or payment may prove for
a proportionate part thereof up to the date of the winding-up order or resolution as if the rent or payment grew due from day to day.
Provided that where the liquidator remains in occupation of premises demised to a company which is being wound up, nothing therein con tained shall prejudice or affect the right of the landlord of such premises to claim payment by the company, or the liquidator, of rent during the period of the company's or the liquidator's occupation.
88. On any debt or sum certain, payable at a certain time or other wise, whereon interest is not reserved or agreed for, and which is over due at the date of the commencement of the winding up, the creditor may prove for interest at a rate not exceeding 6 per cent per annum to that date from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made, giving notice that interest will be claimed from the date of the demand until the time of payment.
Interest
89. A creditor may prove for a debt not payable at the date of the winding-up order or resolution, as if it were payable presently, and may receive dividends equally with the other creditors, deducting only there out a rebate of interest at the rate of 6 per cent per annum computed from the declaration of a dividend to the time when the debt would have become payable according to the terms on which it was contracted.
90. In any case in which it appears that there are numerous claims for wages by workmen and others employed by the company, it shall be sufficient if one proof for all such claims is made either by a foreman or by some other person on behalf of all such creditors. Such proof shall have annexed thereto as forming part thereof, a schedule setting forth the names of the workmen and others, and the amounts severally due to them. Any proof made in compliance with this rule shall have the same effect as if separate proofs had been made by each of the said workmen and others.
Prooffor debt payable at a future time
Workmen's wages
Form 64
B.L.R.O.l/1984
LAWS OF BRUNEI
378
Production of 91. Where a creditor seeks to prove in respect of a bill of exchange,
bhills of ex-d promissory note, or other negotiable instrument or security on which
c ange an
promissory the company is liable, such bill of exchange, note, instrument, or secur-
notes ity must, subject to any special order of the Court made to the contrary,
be produced to the Official Receiver, chairman of a meeting or liquida tor, as the case may be, and be marked by him before the proof can be admitted either for voting or for any purpose.
Transmission of proofs to liquidator
Notice to cre ditors to prove
Examination of proof Form65
92. Where a liquidator is appointed in a winding up by the Court, all proofs of debts that have been received by the Official Receiver shall be handed over to the liquidator, but the Official Receiver shall first make a list of such proofs, and take a receipt thereon from the liquidator for such proofs.
ADMISSION AND REJECTION OF PROOFS AND PREFERENTIAL CLAIMS, AND APPEAL TO THE COURT
93. (1) Subject to the provisions of the Act, and unless otherwise ordered by the Court, the liquidator in any winding up may from time to time fix a certain day, which shall be not less than 14 days from the date of the notice, on or before which the creditors of the company are to prove their debts or claims, and to establish any title they may have to priority under section 250 of the Act or to be excluded from the benefit of any distribution made before such debts are proved or as the case may be from objecting to such distribution, and the liquidator shall give notice in writing of the day so fixed by advertisement in such newspaper as he shall consider convenient, and in a winding up by the Court to every person mentioned in the statement of affairs as a creditor, and who has not proved his debt, and to every person mentioned in the statement of affairs as a preferential creditor whose claim to be a pre ferential creditor has not been established and is not admitted, and in any other winding up to the last known address or place of abode of each person who, to the knowledge of the liquidator, claims to be a creditor or preferential creditor of the company and whose claim has not been admitted.
(2) All the rules hereinafter set out as to admission and rejection of proofs shall apply with the necessary variation to any such claim to priority as aforesaid.
94. The liquidator shall examine every proof of debt lodged with him, and the grounds of the debt, and in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof he shall state in writing to the creditor the grounds of the rejection.
LAWS OF BRUNEI
Companies CAP. 39 379
95. If a creditor or contributory is dissatisfied with the decision of the liquidator in respect of a proof, the Court may, on the application of the creditor or contributory, reverse or vary the decision; but, subject to the power of the Court to extend the time, no application to reverse or vary the decision of the liquidator in a winding up by the Court rejecting a proof sent to him by a creditor, or person claiming to be a creditor, shall be entertained, unless notice of the application is given before the ex piration of 21 days from the date of the service of the notice of rejection.
96. If the liquidator thinks that a proof has been improperly admit ted, the Court may, on the application of the liquidator, after notice to the creditor who made the proof, expunge the proof or reduce its amount.
Appeal hy creditor
Expunging at instance of li· quidator
97. The Court may also expunge or reduce a proof upon the applica- Expunging at tion of a creditor or contributory if the liquidator declines to interfere in % of the matter.
98. For the purpose of any of his duties in relation to proofs, the Oaths liquidator, in a winding up by the Court, may administer oaths and take affidavits.
99. In a winding up by the Court the Official Receiver, before the appointment of a liquidator, shall have all the powers of a liquidator with respect to the examination, admission, and rejection of proofs, and any act or decision of his in relation thereto shall be subject to the like appeal.
100. In a winding up by the Court the Official Receiver, where no other liquidator is appointed, shall, before payment of a dividend, file all proofs tendered in the winding-up, with a list thereof, distinguishing in such list the proofs which were wholly or partly admitted, and the proofs which were wholly or partly rejected.
101. Every liquidator in a winding up by the Court other than the Official Receiver shall on the first day of every month, forward to the Registrar for filing a certified list of all proofs, if any, received by him during the month next preceding, distinguishing in such lists the proofs admitted, those rejected, and such as stand over for further considera tion; and, in the case of proofs admitted or rejected, he shall cause the proofs to be filed with the Registrar.
102. The liquidator in a winding up by the Court, including the Official Receiver when he is liquidator, shall, within 3 days after receiving notice from a creditor of his intention to appeal against a decision rejecting a
Official Receiver's powers
Filing proofs by Official Receiver
Proofs to be filed Form66
Procedure where credi tor appeals
B.L.R.O.l!l984
LAWS OF BRUNEI
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Time for dealing with proofs by Official Receiver
proof, file such proof with the Registrar, with a memorandum thereon of his disallowance thereof.
103. Subject to the power of the Court to extend the time in a winding up by the Court, the Official Receiver as liquidator, not later than 14 days from the latest date specified in the notice of his intention to declare a dividend as the time within which such proofs must be lodged,
shall in writing either admit or reject wholly, or in part, every proof
lodged with him, or require further evidence in support of it.
Time for dealing with proofs by liquidator
104. Subject to the power of the Court to extend the time, the liquida tor in a winding up by the Court, other than the Official Receiver, within 28 days after receiving a proof, which has not previously been dealt with, shall in writing either admit or reject it wholly or in part, or require further evidence in support of it:
Provided that where the liquidator has given notice of his intention to declare a dividend, he shall within 14 days after the date mentioned in the notice as the latest date up to which proofs must be lodged, ex amine, and in writing admit or reject, or require further evidence in support of, every proof which has not been already dealt with, and shall give notice of his decision, rejecting a proof wholly or in part, to the creditors affected thereby. Where a creditor's proof has been admitted the notice of dividend shall be a sufficient notification of the admission.
Costof 105. The Official Receiver shall in no case be personally liable for
l r costs in relation to an appeal from his decision rejecting any proof
t<• proofs wholly or in part.
GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES IN RELATION TO A WINDING UP BY THE COURT
First meet ings of credi tors and eon· tributories
106. Unless the Court otherwise directs, the meetings of creditors and contributories under section 179 of the Act (hereinafter referred to as the first meetings of creditors and contributories) shall be held within one month, or if a special manager has been appointed then within 6 weeks after the date of the winding-up order. The dates of such meet ings shall be fixed and they shall be summoned by the Official Receiver.
Notice of first 107. The Official Receiver shall forthwith give notice of the dates fixed
meetings by him for the first meetings of creditors and contributories by advertise
ment in the Gazette.
LAWS OF BRUNEI
Companies CAP. 39 381
108. The first meetings of creditors and contributories shall be sum- Summoning
moned as hereinafter provided. of first meet
ings
109. The notices of first meetings of creditors and contributories may be in Forms 18 and 19, and the notices to creditors shall state a time within which the creditors must lodge their proofs in order to entitle them to vote at the first meeting.
110. The Official Receiver shall also give to each of the directors and other officers of the company who in his opinion ought to attend the first meetings of creditors and contributories 7 days notice of the time and place appointed for each meeting. The notice may either be delivered personally or sent by prepared post letter, as may be convenient. It shall be the duty of every director or officer who receives notice of such meeting to attend, if so required by the Official Receiver, and if any such director or officer fails to attend the Official Receiver shall report such failure to the Court.
111. (1) The Official Receiver shall also, as soon as practicable, send to each creditor mentioned in the company's statement of affairs, and to each person appearing from the company's books or otherwise to be a contributory of the company a summary of the company's statement of affairs, including the causes of its failure, and any observations thereon which the Official Receiver may think fit to make. The proceedings at a meeting shall not be invalidated by reason of any summary or notice required by these rules not having been sent or received before the meeting.
(2) Where prior to the winding-up order the company has com menced to be wound up voluntarily the Official Receiver may, if in his absolute discretion he sees fit so to do, send to the persons aforesaid or any of them an account of such voluntary winding-up showing how such winding-up has been conducted and how the property of the company has been disposed of and any observations which the Official Receiver may think fit to make on such account or on the voluntary winding-up.
Form of notices of
first meetings
Forms 18 and
19
Notice of first meetings to officers of company Form20
Summary of statement of affairs
GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES IN RELATION TO WINDING UP BY THE COURT AND OF CREDITORS IN RELATION TO A CREDITORS VOLUNTARY WINDING-UP
112. (1) In addition to the first meetings of creditors and contributor- Liquidator's ies arid in addition also to meetings of creditors and contributories l so!nct directed to be held by the Court under section 272 of the Act (hereinaf- contributor fer referred to as Court meetings of creditors and contributories), the ies
B.L.R.O. 111984
LAWS OF BRUNEI
382
Application of rules as to meetings
Summoning of meetings Form 75
liquidator in any winding-up by the Court may himself from time to time subject to the provisions of the Act and the control of the Court sum mon, hold and conduct meetings of the creditors or contributories (hereinafter referred to as liquidator's meetings of creditors and contri butories) for the purpose of ascertaining their wishes in all matters relating to the winding up.
(2) In any creditors voluntary winding up the liquidator may himself from time to time summon, hold and conduct meetings of credi tors for the purpose of ascertaining their wishes in all matters relating to the winding-up (such meetings and all meetings of creditors which a liquidator or a company is by the Act required to convene in or im mediately before such a voluntary winding up and all meetings con vened by a creditor in a voluntary winding up under these rules are hereinafter called voluntary liquidation meetings).
113. Except where and so far as the nature of the subject-matter or the context may otherwise require the rules as to meetings hereinafter set out shall apply to first meetings, Court meetings, liquidator's meetings of creditors and contributories, and voluntary liquidation meetings, but so nevertheless that the said rules shall take effect as to first meetings subject and without prejudice to any express provisions of the Act and as to Court meetings subject and without prejudice to any express direc tions of the Court.
114. (1) The Official Receiver or liquidator shall summon all meetings of creditors and contributories by giving not less than 7 days notice of the time and place thereof in the Gazette and in one or more local papers; and shall not less than 7 days before the day appointed for the meeting send by post to every person appearing by the company's books to be a creditor of the company notice of the meeting of creditors, and to"every person appearing by the company's books or otherwise to be a contributory of the company notice of the meeting of contributories.
(2) The notice to each creditor shall be sent to the address given in his proof, or if he has not proved to the address given in the statement of affairs of the company, if any, or to such other address as may be known to the person summoning the meeting. The notice to each con tributory shall be sent to the address mentioned in the company's books as the address of such contributory, or to such other address as may be known to the person summoning the meeting.
(3) In the case of meetings under section 230 of the Act the· continuing liquidator or if there is no continuing liquidator any creditor may summon the meeting.
LAWS OF BRUNEI
Companies CAP. 39 383
(4) This rule shall not apply to meetings under section 226 or 233
- of the Act.
115. A certificate by the Official Receiver or other officer of the Court, or by the clerk of any such person, or an affidavit by the liquidator, or creditor, or his solicitor, or the clerk of either of such persons, or as the case may be by some officer of the company or its solicitor or the clerk of such company or solicitor that the notice of any meeting has been duly posted, shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed.
116. Every meeting shall be held at such place as is in the opinion of the person convening the same most convenient for the majority of the creditors or contributories, or both. Different times or places or both may if thought expedient be named for the meetings of creditors and for the meetings of contributories.
117. The costs of summoning a meeting of creditors or contributories at the instance of any person other than the Official Receiver or liquida tor shall be paid by the person at whose instance it is summoned who shall before the meeting is summoned deposit with the Official Receiver or liquidator (as the case may be) such sum as may be required by the Official Receiver or liquidator as security for the payment of such costs. The costs of summoning such meeting of creditors or contributories, including all disbursements for printing, stationery, postage and the hire of room, shall be calculated at the following rate for each creditor or contributory to whom notice is required to be sent, namely, $1 per creditor or contributory for the first 20 creditors or contributories, and
50 cents per creditor or contributory for the next 30 creditors or contri butories, and 25 cents per creditor or contributory for any number of creditors or contributories after the first 50.
The said costs shall be repaid out of the assets of the company if the Court shall by order or if the creditors or contributories (as the case may be) shall be resolution so direct. This rule shall not apply to meetings under sections 226 and 230 of the Act.
118. Where a meeting is summoned by the Official Receiver or the liquidator, he or someone nominated by him shall be chairman of the meeting. At every other meeting of creditors or contributories the chair man shall be such person as the meeting by resolution shall appoint. This rule shall not apnly to meetings under section 226 of the Act.
Proof of notice
Forms 76and
77
Place of meetings
Costs of call
ingmeeting
Chairman of meeting Form79
B.L.R.O. 111984
LAWS OF BRUNEI
384
Ordinary resolution
of creditors and contribu tories
119. At a meeting of creditors a resolution shall be deemed to be passed when a majority in number and value of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution, and at a meeting of the contributories a resolution shall be deemed to be passed when a majority in number and value of the contributories present personally or by proxy, and voting on the resolution, have voted in favour of the resolution, the value of the
contributories being determined according to the number of votes con
ferred on each contributory by the regulations of the company.
Copyofre solution to be filed
Non reception of notice by a creditor
Adjournment
Form78
Quorum
Form21
Creditors entitled to vote
120. The Official Receiver or as the case may be the liquidator shall file with the Registrar a copy certified by him of every resolution of a meeting of creditors or contributories in a winding up by the Court.
121. Where a meeting of creditors or contributories is summoned by notice the proceedings and resolutions at the meeting shall unless the Court otherwise orders be valid notwithstanding that some creditors or contributories may not have received the notice sent to them.
122. The chairman may with the consent of the meeting adjourn it from time to time and from place to place, but the adjourned meeting shall be held at the same place as the original place of meeting unless in the resolution for adjournment another place is specified or unless the Court otherwise orders.
123. (1) A meeting may not act for any purpose except the election of a chairman, the proving of debts and the adjournment of the meeting unless there are present or represented thereat at least 3 creditors enti tled to vote or 3 contributories or all the creditors entitled to vote or all the contributories, if the number of the creditors entitled to vote or the contributories as the case may be shall not exceed 3.
(2) If within half an hour from the time appointed for the meet ing a quorum of creditors or contributories is not present or represented the meeting shall be adjourned to the same day in the following week at the same time and place or to such other day as the chairman may appoint not being less than 7 or more than 21 days, from the day from which the meeting was adjourned.
124. In the case of a first meeting of creditors or of an adjournment thereof a person shall not be entitled to vote as a creditor unless he has duly lodged with the Official Receiver not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meet ing a proof of the debt which he claims to be due to him from the company. In the case of a Court meeting or liquidator's meeting of
LAWS OF BRUNEI
Companies CAP. 39 385
creditors a person shall not be entitled to vote as a creditor unless he has lodged with the Official Receiver or liquidator a proof of the debt which he claims to be due to him from the company and such proof has been admitted wholly or in part before the date on which the meeting is held:
Provided that this and the next 4 following rules shall not apply to a Court meeting of creditors held prior to the first meeting of creditors. This rule shall not apply to any creditors or class of creditors who by virtue of any direction given under these rules are not required to prove their debts or to any voluntary liquidation meeting.
125. A creditor shall not vote in respect of any unliquidated or contin gent debt, or any debt the value of which is not ascertained, nor shall a creditor vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the company, and against whom a Receiving Order in bankruptcy has not been made, as a security in his hands, and to esti mate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof.
126. For the purposes of voting, a secured creditor shall, unless he surrenders his security, state in his proof or in a voluntary liquidation in such a statement as is hereinafter mentioned the particulars of his secur ity, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the Court on application is satisfied that the omission to value the secur ity has arisen from inadvertence.
127. The Official Receiver or liquidator may within 28 days after a proof or in a voluntary liquidation a statement estimating the value of a security as aforesaid has been used in voting at a meeting require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated with an addition thereto of 20 per cent:
Provided that where a creditor has valued his security he may at any time before being required to give it up correct the valuation by a new proof and deduct the new value from his debt, but in that case the said addition of 20 per cent shall not be made if the security is required to be given up.
Cases in which creditors may not vote
Votes of secured creditors
Creditor required to give up security
B.L.R.O. 111984
LAWS OF BRUNEI
386
Admission and rejection of proofs for purpose of voting
Statement of security
Minutes of meeting
Form22
Proxies
Form of proxies Forms SO and 81
128. The chairman shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the Court. If he is in doubt whether a proof should be admitted or rejected he shall mark it as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained.
129. For the purpose of voting at any voluntary liquidation meetings a secured creditor shall unless he surrender his security lodge with the liquidator or where there is no liquidator at the registered office of the company before the meeting a statement giving the particulars of his security, the date when it was given and the value at which he assesses it.
130. (1) The chairman shall cause minutes of the proceedings at the meeting to be drawn up and fairly entered in a book kept for that purpose or in the file of proceedings and the minutes shall be signed by him or by the chairman of the next ensuing meeting.
(2) A list of creditors and contributories present at every meet
ing shall be made and kept as in Form 22.
PROXIES IN RELATION TO A WINDING-UP BY THE COURT, AND TO MEETINGS OF CREDITORS IN A CREDITORS
VOLUNTARY WINDING-UP
131. A creditor or a contributory may vote either in person or by proxy. Where a person is authorised in manner provided by section 115 of the Act to represent a corporation at any meeting of creditors or contributories such person shall produce to the Official· Receiver or liquidator or other chairman of the meeting a copy of the resolution so authorising him. Such copy must either be under the seal of the corpora tion or must be certified to be a true copy by the secretary or a director of the corporation. The succeeding rules as to proxies shall not (unless otherwise directed by the Court) apply to a Court meeting of creditors or contributories prior to the first meeting.
132. Every instrument of proxy shall be in accordance with the form in the Appendix and every written part thereof shall be in the handwriting of the person giving the proxy or of any manager or clerk or other person in his regular employment or of the solicitor employed by him in connexion with the matter or of a commissioner to administer oaths in the Supreme Court.
LAWS OF BRUNEI
'. Companies CAP. 39 387
133. General and special forms of proxy shall be sent to the creditors and contributories with the notice summoning the meeting, and neither the name nor description of the Official Receiver or liquidator or any other person shall be printed or inserted in the body of any instrument of proxy before it is so sent.
Forms of proxy to be sent with notices
134.
A creditor or a contributory may give a general proxy to any General
person.
proxies
135. A creditor or a contributory may give a special proxy to any Special
person to vote at any specifted meeting or adjournment thereof proxies
(a) for or against the appointment or continuance in office of any specified person as liquidator or member of the com mittee of inspection; and
(b) on all questions relating to any matter other than those above referred to and arising at the meeting or an adjourn ment thereof.
136. Where it appears to the satisfaction of the Court that any solicita tion has been used by or on behalf of a liquidator in obtaining proxies or in procuring his appointment as liquidator except by the direction of a meeting of creditors or contributories, the Court if it thinks fit, may order that no remuneration be allowed to the person by whom or on whose behalf the solicitation was exercised notwithstanding any resolu tion of the committee of inspection or of the creditors or contributories to the contrary.
137. A creditor or a contributory in a winding up by the Court may appoint the Official Receiver or liquidator and in a voluntary winding up the liquidator or if there by no liquidator the chairman of a meeting to act as his general or special proxy.
138. No person acting either under a general or a special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer in a position to receive any remunera tion out of the assets of the company otherwise than as creditor rateably with the other creditors of the company:
Provided that where any person holds special proxies to vote for an application to the Cotut in favour of the appointment of himself as liquidator he may use the said proxies and vote accordingly.
Solicitation by liquidator to obtain proxies
Proxies to Official Receiver or liquidator
Holder of proxy not to vote on matter in which he is financially interested
B.L.R.O. 111984
LAWS OF BRUNEI
388
CAP. 39 Companies
Lodgment of 139. (1) A proxy intended to be used at the first meeting of creditors proxies or contributories, or an adjournment thereof, shall be lodged with the Official Receiver not later than the time mentioned for that purpose in
the notice convening the meeting or the adjourned meeting, which time shall be not earlier than 12 o'clock at noon of the day but one before, nor later than 12 o'clock at noon of the day before the day appointed for such meeting, unless the Court otherwise directs.
(2) In every other case a proxy shall be lodged with the Official Receiver or liquidator in a winding up by the Court, with the company at its registered office for a meeting under section 226 of the Act and with the liquidator or if there is no liquidator with the person named in the notice convening the meeting to receive the same in a voluntary winding up not later than 4 o'clock in the afternoon of the day before the meeting or adjourned meeting at which it is to be used.
(3) No person shall be appointed a general or special proxy who is a minor.
Use of proxies by deputy
Filling in where creditor blind or incapable
Dividends to creditors Forms67
and 70
140. Where an Official Receiver who holds any proxies cannot attend the meeting for which they are given, he may, in writing, depute some person under his official control to use the proxies on his behalf, and in such manner as he may direct.
141. The proxy of a creditor blind or incapable of writing may be accepted, if such creditor has attached his signature or mark thereto in the presence of a witness, who shall add to his signature his description and residence:
Provided that all insertions in the proxy are in the handwriting of the witness and such witness shall have certified at the foot of the proxy that all such insertions have been made by him at the request of the creditor and in his presence before he attached his signature or mark.
DIVIDENDS IN A WINDING:-UP BY THE COURT
142. (1) Not more than 2 months before declaring a dividend the liquidator in a winding up by the Court, shall give notice of his intention to do so to the Official Receiver in order that the same may be gazetted, and at the same time to such of the creditors mentioned in the statement of affairs as have not proved their debts. Such notice shall specify the latest date up to which proofs must be lodged, which shall not be less than 14 days from the date of such notice.
LAWS OF BRUNEI
Companies CAP. 39 389
{2) Where any creditor, after the date mentioned in the notice of intention to declare a dividend as the latest date up to which proofs may be lodged, appeals against the decision of the liquidator rejecting a proof, notice of appeal shall, subject to the power of the Court to extend the time in special cases, be given within 7 days from the date of the notice of the decision against which the appeal is made, and the liquida· tor may in such case make provision for the dividend upon such proof, and the probable costs of such appeal in the event of the proof being admitted. Where no notice of appeal has been given within the time specified in this rule, the liquidator shall exclude all proofs which have been rejected from participation in the dividend.
(3) Immediately after the expiration of the time fixed by this rule Form 71
for appealing against the decision of the liquidator he shall proceed to declare a dividend, and shall give notice to the Official Receiver (in order that the same may be gazetted), and shall also send a notice of dividend to each creditor whose proof has been admitted.
{4) If it becomes necessary, in the opinion of the liquidator and the committee of inspection, to postpone the declaration of the dividend beyond the limit of 2 months, the liquidator shall give a fresh notice of his intention to declare a dividend to the Official Receiver in order that the same may be gazetted; but it shall not be necessary for the liquidator to give a fresh notice to such of the creditors mentioned in the statement of affairs as have not proved their debts. In all other respects the same procedure shall follow the fresh notice as would have followed the ori ginal notice.
{5) Upon the declaration of a dividend the liquidator shall forth with transmit to the Official Receiver a list of the proofs filed with the Registrar under rule 101, which list shall be in Form 68 or 69 as the case may be, and the liquidator shall, if so required by the Official Receiver, transmit to him, office copies of all lists of proofs filed by him up to the date of the declaration of the dividend.
Forms68
and 69
- (6) Dividends may at the request and risk of the person to whom they are payable be transmitted to him by post.
(7) If a person to whom dividends are payable desires that they shall be paid to some other person he may lodge with the liquidator a document in Form 72 which shall be a sufficient authority for payment Form 72 of the dividend to the person therein named.
(8) The Official Receiver when he is liquidator shall cause to be gazetted notice of his intention to declare a dividend and notice of his
B.L.R.O.l/1984
LAWS OF BRUNEI
390
Return of capital to contribu tories Forms 73 and 74
declaration thereof, and shall also at the same time give to creditors notice of such intention or of such declaration in like manner as notice thereof is required to be given by a liquidator other than the Official Receiver.
143. Every order by which the liquidator in a winding up by the Court is authorised to make a return to contributories of the company shall, unless the Court shall otherwise direct, contain or have appended there to a schedule or list (which the liquidator shall prepare) setting out in a tabular form the full names and addresses of the persons to whom the return is to be paid, and the amount of money payable to each person, and particulars of the transfers of shares (if any) which have been made or the variations in the list of contributories which have arisen since the date of the settlement of the list of contributories and such other in formation as may be requisite to enable the return to be made. The schedule or list shall be in Form 74, and the liquidator shall send a notice of return to each contributory.
ATTENDANCE AND APPEARANCE OF PARTIES
Attendance at proceedings
144. (1) Every person for the time being on the list of contributories of the company, and every person whose proof has been admitted shall be at liberty, at his own expense, to attend proceedings, and shall be entitled, upon payment of the costs occasioned thereby, to have notice of all such proceedings as he shall by written request desire to have notice of:
Provided that if the Court shall be of opinion that the attendance of any such person upon any proceedings has occasioned any additional costs which ought not to be borne by the funds of the company, it may direct such costs, or a gross sum in lieu thereof, to be paid by such person; and such person shall not be entitled to attend any further proceedings until he has paid the same.
(2) The Court may from time to time appoint any one or more of the creditors or contributories to represent before the Court, at the expense of the company, all or any class of the creditors or contributor ies, upon any question or in relation to any proceedings before the Court, and may remove the person so appointed. Such person or per sons may appoint a solicitor to represent them.
(3) No creditor or contributor shall be entitled to attend any proceedings in chambers unless and until he has entered in a book, to be kept by the Registrar for that purpose, his name and address, and the
LAWS OF BRUNEI
Companies CAP. 39 391
name and address of his solicitor (if any) and upon any change of his address or of his solicitor, his new address, and the name and address of his new solicitor.
145. Where the liquidator's solicitor attends on any proceeding in Court or chambers, the liquidator need not attend in person, except in cases where his presence is necessary in addition to that of his solicitor, or the Court directs him to attend.
AHendance
of
liq';li ator's
sohcttor
LIQUIDATOR AND COMMITTEE OF INSPECTION
146. (1) The remuneration of a liquidator, unless the Court shall Remuner
otherwise order, shall be in the nature of a commission or percentage of fct ior
which one part shall be payable on the amount realised, after deducing
the sums (if any) paid to secured creditors (other than debenture hol- ders) out of the proceeds of their securities, and the other part on the amount distributed in dividend.
(2) The remuneration of the liquidator shall, unless the Court shall otherwise order, be fixed by the scale of fees and percentages for the time being payable on realisations and distributions by the Official Receiver as liquidator.
(3) This rule shall only apply to a liquidator appointed in a wind
ing up by the Court.
147. Except as provided by the Act or the rules, a liquidator shall not under any circumstances whatever, make any arrangement for, or accept from any solicitor, auctioneer, or any other person connected with the company of which he is liquidator, or who is employed in or in connexion with the winding up of the company, and gift, remuneration, or pecuniary or other consideration or benefit whatever beyond the remuneration to which under the Act and the rules he is entitled as liquidator, nor shall he make any arrangement for giving up, or give up any part of such remuneration to any such solicitor, auctioneer, or other person.
Limit of remuneration
148. Neither the liquidator nor any member of the committee of in spection of a company shall, while acting as liquidator or member of such committee, except by leave of the Court, either directly or indirect ly, by himself or any employer, partner, clerk, agent, or servant, be come purchaser of any part of the company's assets. Any such purchase made contrary to the provisions of this rule may be set aside by the Court on the application of the Official Receiver in a winding up by the
Dealings with assets
Yl B.LR.O. 111984
LAWS OF BRUNEI
392
Court or of any creditor or contributory in any winding up and the Court may make such order as to costs as the Court shall think fit.
Restriction on purchase of goods by liquidator
149. Where the liquidator carries on the business of the company, he shall not, without the express sanction of the Court, purchase goods for the carrying on of such business from any person whose connexion with the liquidator is of such a nature as would result in the liquidator obtain ing any portion of the profit (if any) arising out of the transaction.
mm ttee of150. No member of a committee of inspection shall, except under and -
n Ft: ake with the sanction of the Court, directly or indirectly, by himself or any
profit employer, partner, clerk, agent, or servant, be entitled to derive any
profit from any transaction arising out of the winding up, or to receive out of the assets any payment for services rendered by him in connexion with the administration of the assets, or for any goods supplied by him to the liquidator for or on account of the company. In a winding up by the Court, if it appears to the Official Receiver or in a voluntary winding up if it appears to the committee of inspection or to any meeting of creditors or contributories that any profit or payment has been made contrary to the provisions of this rule, they may disallow such payment or recover such profit, as the case may be, on the audit of the liquida tor's accounts, or otherwise.
Costs of obtaining sanction of Court
Sanction of payments to committee
151. In any case in which the sanction of the Court is obtained under rules 149 and 150, the cost of obtaining such sanction shall be borne by the person in whose interest such sanction is obtained, and shall not be payable out of the company's assets.
152. Where the sanction of the Court to a payment to a member of a committee of inspection for services rendered by him in connexion with the administration of the company's assets is obtained, the order of the Court shall specify the nature of the services, and such sanction shall only be given where the service performed is of a special nature. Except by the express sanction of the Court no remuneration shall, under any circumstances, be paid to a member of a committee for services ren dered by him in the discharge of the duties attaching to his office as a member of such committee.
Discharf,e of 153. (1) Where a liquidator is appointed by the Court, and has coststbhe ode d notified his appointment to the Registrar of Companies, and given to liquidator security to the satisfaction of the fficml Receiver, the eta Receiver shall forthwith put the liquidator into possession of all property of the
company of which the Official Receiver may have custody:
Provided that such liquidator shall have, before the assets are handed over to him by the Official Receiver, discharged any balance due to the
LAWS OF BRUNEI
Companies CAP. 39 393
Official Receiver on account of fees, costs, and charges properly incur red by him, and on account of any advances properly made by him in respect of the company, together with interest on such advances at the rate of 6 per cent per annum; and the Liquidator shall pay all fees, costs, and charges of the Official Receiver which may not have been dis charged by the liquidator before being put into possession of the proper ty of the company, and whether incurred before or after he has been put into such possession.
(2) The Official Receiver shall be deemed to have a lien upon the company's assets until such balance shall have been paid and the other liabilities shall have been discharged.
(3) It shall be the duty of the Official Receiver, if so requested by the liquidator, to communicate to the liquidator all such information respecting the estate and affairs of the company as may be necessary or conducive to the due discharge of the duties of the liquidator.
Court.
(4) This rule and rule 154 shall apply only in a winding up by the
154. A liquidator who desires to resign his office shall summon sepa- Resignation rate meetings of the creditors and contributories of the company to ofliquidator decide whether or not the resignation shall be accepted. If the creditors
and contributories by ordinary resolutions both agree to accept the resignation of the liquidator, he shall file with the Registrar a memoran- dum of his resignation, and shall send notice thereof to the Official Receiver, and the resignation shall thereupon take effect. In any other case the liquidator shall report to the Court the result of the meetings and shall send a report to the Official Receiver and thereupon the Court may, upon the application of the liquidator or the Official Receiver, determine whether or not the resignation of the liquidator shall be accepted, and may give such directions and make such orders as in the opinion of the Court shall be necessary.
155. If a Receiving Order in bankruptcy is made against the liquidator, Office of
he shall thereby vacate his office, and for the purposes of the application i eaJo;Y
of the Act and rules shall be deemed to have been removed. his insolvency
PAYMENTS INTO AND OUT OF A BANK
156. All payments out of the companies liquidation account shall be Payments out made in such manner as the Permanent Secretary may from time to time of bank direct.
B.L.R.O.l/1984
LAWS OF BRUNEI
394 CAP. 39 Companies
Special bank account. Forms82
and 83
157. (1) Where the liquidator in a winding up by the Court is autho rised to have a special bank account, he shall forthwith pay all moneys received by him into that account to the credit of the liquidator of the company. All payments out shall be made by cheque payable to order, and every cheque shall have marked or written on the face of it the name of the company, and shall be signed by the liquidator, and shall be countersigned by at least one member of the committee of inspection, and by such other person, if any, as the committee of inspection may appoint.
(2) Where application is made to the Official Receiver to autho rise the liquidator in a winding up by the Court to make his payments into and out of a special bank account, the Official Receiver may grant such authorisation for such time and on such terms as he may think fit, and may at any time order the account to be closed if he is of opinion that the account is no longer required for the purposes mentioned in the application.
BOOKS
Record of 158. In a winding up by the Court the Official Receiver. until a liquida proceedings tor is appointed by the Court, and thereafter the liquidator, shall keep a record in which he shall record all minutes, all proceedings had and
resolutions passed at any meeting of creditors or contributories, or of the committee of inspection, and all such matters as may be necessary to give a correct view of his administration of the company's affairs, but he shall not be bound to insert in the record any document of a confidential nature (such as the opinion of counsel on any matter affecting the in terest of the creditors or contributories), nor need he exhibit such docu ment to any person other than a member of the committee of inspec tion, or the Official Receiver.
Cash Book 159. (1) In a winding up by the Court, the Official Receiver, until a liquidator is appointed by the Court, and thereafter the liquidator, shall keep a book to be called the "Cash Book" (which shall be in such form as the Official Receiver may from time to time direct) in which he shall (subject to the provisions of the rules as to trading accounts) enter from day to day the receipts and payments made by him.
(2) In a winding up by the Court, a liquidator other than the Official Receiver, shall submit the record and Cash Book, together with any other requisite books and vouchers, to the committee of inspection (if any) when required, and not less than once every 3 months.
LAWS OF BRUNEI
Companies CAP. 39 395
(3) In a creditors voluntary winding up the liquidator sha11 keep such books as the committee of inspection or if there is no such commit tee as the creditors direct and all books kept by the liquidator shall be submitted to the committee of inspection or if there is no such commit tee to the creditors with any other books, documents, papers, and accounts in his possession relating to his office as liquidator or to the company as and when the committee of inspection or if there is no such committee the creditors direct.
INVESTMENT OF FUNDS
160. (1) Where in a winding up by the Court or in a creditors volun tary winding up, the committee of inspection are of opinion that any part of the cash balance standing to the credit of the account of the company should be invested, they shall sign a certificate and request, and the liquidator shall transmit such certificate and request to the Official Receiver.
(2) Where the committee of inspection in any such winding up are of opinion that it is advisable to sell any of the securities in which the moneys of the company's assets are invested they shall sign a certificate and request to that effect, and the liquidator shall transmit such certi ficate and request to the Official Receiver.
Investment of assets in securities,
and realisation of securities.
Forms84 and 85
(3) Where there is no committee of inspection in any such wind ing up as is mentioned in paragraphs (1) and (2) and in every members voluntary winding up whether subject to the supervision of the Court or not, if a case has in the opinion of the liquidator arisen under section 280 of the Act for an investment of funds of the company or a sale of securities in which the company's funds have been invested, the liquidator shaH sign and transmit to the Official Receiver a certificate of the facts on which his opinion is founded, and a request to the Official Receiver to make the investment or sale mentioned in the certificate, and the Official Receiver may thereupon, if he thinks fit, invest or sell the whole or any part of the said funds or securities, as provided in the said section, and the said certificate and request shall be a sufficient authority to the Official Receiver for the said investment or sale.
ACCOUNTS AND AUDIT IN A WINDING UP BY THE COURT
161. The committee of inspection shall not less than once every 3 Audit of
months audit the liquidator's Cash Book and certify therein under their Cash Book.
Form 86
hands the day on which the said book was audited.
B.L.R.O. 111984
LAWS OF BRUNEI
396
Official Receiver's audit of liquidator's accounts
162. (1) The liquidator shall, at the expiration of 6 months from the date of the winding up order, and at the expiration of every succeeding 6 months thereafter until his release, transmit to the Official Receiver a copy of the Cash Book for such period in duplicate, together with the necessary vouchers and copies of the certificates of audit by the commit tee of inspection. He shall also forward with the first accounts, a sum mary of the company's statement of affairs, showing thereon in red ink the amounts realised, and explaining the cause of the non-realisation of such assets as may be unrealised. The liquidator shall also at the end of every 6 months forward to the Official Receiver, with his accounts, a report upon the position of the liquidation of the company in such form as the Official Receiver may direct.
(2) When the assets of the company have been fully realised and distributed, the liquidator shall forthwith send in his accounts to the Official Receiver, although the 6 months may not have expired.
Form87
Liquidator carrying on business
Forms88 and 89
Copy of accounts to be filed
Summary of
accounts
(3) The accounts sent in by the liquidator shall be verified by him by affidavit.
163. (1) Where the liquidator carries on the business of the company, he shall keep a distinct account of the trading, and shall incorporate in the Cash Book the total weekly amounts of the receipts and payments on such trading account.
(2) The trading account shall from time to time, and not less than once in every month, be verified by affidavit, and the liquidator shall thereupon submit such account to the committee of inspection (if any) or such member thereof as may be appointed by the committee for that purpose, who shall examine and certify the same.
164. When the liquidator's account has been audited, the Official Re ceiver shall certify the fact upon the account, and thereupon the dupli cate copy, bearing a like certificate, shall be filed with the Registrar.
165. (1) The liquidator shall transmit to the Official Receiver with his accounts a summary of such accounts in such form as the Official Re ceiver may from time to time direct, and, on the approval of such summary by the Official Receiver, shall forthwith obtain, prepare, and transmit to the Official Receiver so many printed copies thereof, duly stamped for transmission by post, and addressed to the creditors and contributories, as may be required for transmitting such summary to such creditor and contributory.
(2) The cost of printing and posting such copies shall be a charge upon the assets of the company.
LAWS OF BRUNEI
Companies CAP. 39 397
166. Where a liquidator has not since the date of his appointment or Affidavit of since the last audit of his accounts, as the case may be, received or paid no receipts any sum of money on account of the assets of the company, he shall, at
the time when he is required to transmit his accounts to the Official
Receiver, forward to the Official Receiver an affidavit of no receipts or
payments.
167. (1) Upon a liquidator resigning, or being released or removed from his office, he shall deliver over to the Official Receiver, or as the case may be, to the new liquidator, all books kept by him, and all other books, documents, papers, and accounts in his possession relating to the office of liquidator. The release of a liquidator shall not take effect unless and until he has delivered over to the Official Receiver, or as the case may be to the new liquidator, all the books, papers, documents, and accounts which he is by this rule required to deliver on his release.
(2) The Court may, at any time during the progress of the li quidation, on the application of the liquidator or the Official Receiver, direct that such of the books, papers, and documents of the company or of the liquidator as are no longer required for the purpose of the liquida tion, may be sold, destroyed, or otherwise disposed of.
168. Where property forming part of a company's assets is sold by the liquidator through an auctioneer or other agent, the gross proceeds of the sale shall be paid over by such auctioneer or agent, and the charges and expenses connected with the sale shall afterwards be paid to such auctioneer or agent, on the production of the necessary certificate of the taxing officer. Every liquidator by whom such auctioneer or agent is employed, shall, unless the Court otherwise orders, be accountable for the proceeds of every such sale.
TAXATION OF COSTS
169. Every solicitor, manager, accountant, auctioneer, broker, or other person employed by an Official Receiver or liquidator in a wind ing up by the Court shall on request by the Official Receiver or liquida tor (to be made a sufficient time before the declaration of a dividend) deliver his bill of costs or charges to the Official Receiver or liquidator for the purpose of taxation; and ifhe fails to do so within the time stated in the request, or such extended time as the Court may allow, the liquidator shall declare and distribute to the dividend without regard to such person's claim, and subject to any order .of the Court the claim shall be forfeited. The request by the Official Receiver or liquidator shall be in Form 90.
Proceedings on resig nation, &c., of liquidator
Disposal of books
Expenses of sales
Taxation of costs payable by or to Official Receiver or liquidator or by company
Form90
B.L.R.O. JIJ984
LAWS OF BRUNEI
398
Notice of appointment
Lodgment of bill
Copy of the bill to be furnished
Application for costs
Certificate of taxation Form 91
170. Where a bill of costs or charges in any winding up has been lodged with the taxing officer, he shall give notice of an appointment to tax the same, in a winding up by the Court to the Official Receiver, and in every winding up to the liquidator, and to the person to or by whom the bill or charges is or are to be paid (as the case may be).
171. The bill or charges, if incurred in a winding up by the Court prior to the appointment of a liquidator, shall be lodged with the Official Receiver, and if incurred after the appointment of a liquidator, shall be lodged with the liquidator. The Official Receiver or the liquidator, as the case may be, shall lodge the bill or charges with the taxing officer.
172. Every person whose bill or charges in a winding up by the Court is or are to be taxed shall, on application either of the Official Receiver or the liquidator, furnish a copy of his bill or charges so to be taxed, on payment at the rate of 35 cents per folio, which payment shall be charged on the assets of the company. The Official Receiver shall call the attention of the liquidator to any items which, in his opinion, ought to be disallowed or reduced, and may attend or be represented on the taxation.
173. Where any party to, or person affected by, any proceeding de sires to make an application for an order that he be allowed his costs, or any part of them, incident to such proceeding, and such application is not made at the time of the proceeding -
(a) such party or person shall serve notice of his intended application on the Official Receiver or on the liquidator, as the case may be;
(b) the Official Receiver or liquidator may appear on such application and object thereto; and
(c) no costs of or incident to such application shall be allowed to the applicant, unless the Court is satisfied that the application could not have been made at the time of the proceeding.
174. Upon the taxation of any bill of costs, charges, or expenses being completed, the taxing officer shall issue to the person presenting such bill for taxation his allowance or certificate of taxation. The bill of costs, charges, and expenses, together with the allowance or certificate, shall be filed with the Registrar.
LAWS OF BRUNEI
Companies CAP. 39 399
175. Where the bill or charges of any solicitor, manager, accountant, auctioneer, broker, or other person employed by ap Official Receiver or liquidator, is or are payable out of the assets of the company, a certi
ficate in writing, signed by the Official Receiver or liquidator, as the case may be, shall on the taxation be produced to the taxing officer setting forth whether any, and if so what, special terms of remuneration have been agreed to, and in the case of the bill of costs of a solicitor, a copy of the resolution or other authority sanctioning the employment of a solicitor to assist the liquidator in the performance of his duties, and the instructions given to such solicitor by the liquidator.
Certificate of employment
176. All costs properly incurred in a winding up by the Court shall be Costs and
allowed and shall be taxed by the Registrar. taxation
177. The procedure and practice of the Supreme Court shall be Review of
observed in all reviews of taxation. taxation and appeals
thereon
COSTS AND EXPENSES PAYABLE OUT OF THE ASSETS OF THE COMPANY
178. (1) Where a liquidator or special manager in a winding up by the Liquidator's
Court receives remuneration for his services as such, no payment shall charges
be allowed on his accounts in respect of the performance by any other person of the ordinary duties which are required by Act or rules to be performed by himself.
(2) Where a liquidator is a solicitor he may contract that the remuneration for his services as liquidator shall include all professional services.
179. (1) The assets of a company in a winding up by the Court, re maining after payment of the fees and expenses properly incurred in preserving, realising or getting in the assets, including where the com pany has previously commenced to be wound up voluntarily such re muneration, costs, and expenses as the Court may allow to a liquidator appointed in such voluntary winding up shall, subject to any order of the Court, be liable to the following payments, which shall be made in the following order of priority, namely -
Costs payable out of the assets
First.-The taxed costs of the petitions, including the taxed costs of any person appearing on the petition whose costs are allowed by the Court.
B.L.R.O. 111984
LAWS OF BRUNEI
400 CAP. 39 Companies
Next.-The remuneration of the special manager (if any). -
Next.-The costs and expenses of any person who makes or con
curs in making, the company's statement of affairs.
Next.-The taxed charges of any shorthand writer appointed to take an examination: Provided that where the shorthand writer is appointed at the instance of the Official Receiver the cost of the shor thand notes shall be deemed to be an expense incurred by the Official Receiver in getting in and realising the assets of the company.
Next.-The necessary disbursements of any liquidator appointed in the winding up by the Court, other than expenses properly incurred in preserving, realising or getting in the assets heretofore provided for.
Next.-The costs of any person properly employed by any such liquidator.
Next.-The remuneration of any such liquidator.
Next.-The actual out-of-pocket expenses necessarily incurred by the committee of inspection, subject to the approval of the Official Receiver.
(2) No payments in respect of bills or charges of solicitors, mana gers, accountants, auctioneers, brokers, or other persons, other than payments for costs and expenses incurred and sanctioned under rule 43, and payments of bills which have been taxed and allowed under orders made for the taxation thereof, shall be allowed out of the assets of the company without proof that the same have been considered and allowed by the Registrar. The taxing officer shall satisfy himself before passing such bills or charges that the employment of the solicitor or other person in respect of the matters mentioned in the bills or charges has been duly sanctioned:
Provided that the Official Receiver when acting as liquidator may without taxation pay and allow the costs and charges of any person other than a solicitor employed by him where such costs and charges are within the scale usually allowed by the Court and do not exceed the sum of $100.
(3) Nothing contained in this rule shall apply to or affect costs which. in the course of legal proceedings by or against a company which is being wound up by the Court, are ordered by the Court in which such proceedings are pending or a Judge thereof to be paid by the company or the liquidator, or the rights of the person to whom such costs are payable.
LAWS OF BRUNEI
Companies CAP. 39 401
STATEMENTS BY LIQUIDATOR TO THE REGISTRAR OF COMPANIES
180. The winding up of a company shall, for the purposes of Conclusion of
section 269 of the Act, be deemed to be concluded - winding up
(a) in the case of a company wound up by order of the Court, at the date on which the order dissolving the company has been reported by the liquidator to the Registrar of Com panies or at the date of the order of the Court releasing the liquidator pursuant to section 190 of the Act;
(b) in the case of a company wound up voluntarily, or under the supervision of the Court, at the date of the disolu tion of the company, unless at such date any funds or assets of the company remain unclaimed or undistributed in the hands or under the control of the liquidator, or any person who has acted as liquidator, in which case the winding up shall not be deemed to be concluded until such funds or assets have either been distributed or paid into the com panies liquidation account.
181. In a voluntary winding up or a winding up under the supervision of the Court, the statements with respect to the proceedings in and position of a liquidation of a company, the winding up of which is not concluded within a year after its commencement, shall be sent to the Registrar of Companies twice in every year as follows -
(a) the first statement commencing at the date when a liquidator was first appointed and brought down to the end of
12 months from the commencement of the winding up, shall be sent within 30 days from the expiration of such 12 months,
or within such extended period as the Court may sanction, and the subsequent statements shall be sent at intervals of half a year, each statement being brought down to the end of
the half-year for which it is sent. In cases in which the assets
of the company have been fully realised and distributed be fore the expiration of a half-yearly interval a final statement shall be sent forthwith;
(b) subject to the next succeeding rule, Form 92, and where applicable Forms 94, 95 and 96, shall be used, and the directions specified in the Form shall (unless the Court other wise directs) be observed in reference to every statement:
Times of sending liquidator's statements, and regulations applicable thereto
Forms 92, 94,
95and 96
B.L.R.O. 111984
LAWS OF BRUNEI
402
Form93
Affidavit of no receipts or payments
Forms92 to 93
(c) every statement shall be sent in duplicate, and shall be verified by an affidavit in Form 93.
182. Where in a voluntary winding up or a winding up under the supervision of the Court, a liquidator has not during any period for which a statement has to be sent received or paid any money on account of the company, he shall at the period when he is required to transmit his statement, send to the Registrar of Companies the prescribed state ment in Form 92, in duplicate, containing the particulars therein re quired with respect to the proceedings in and position of the liquidation, and with such statement shall also send an affidavit of no receipts or payments in Form 93.
UNCLAIMED FUNDS AND UNDISTRIBUTED ASSETS IN THE HANDS OF A LIQUIDATOR
Payment of undistributed and unclaimed money into companies liquidation account
183. (1) All money in the hands or under the control of a liquidator of a company representing unclaimed dividends, which for 6 months from the date when the dividend became payable have remained in the hands or under the control of the liquidator, shall forthwith, on the expiration of the 6 months, be paid into the companies liquidation account.
(2) In a voluntary winding up or a winding up under the supervi sion of the Court all other money in the hands or under the control of a liquidator of a company, representing unclaimed or undistributed assets, which under subsection (1) of section 270 of the Act, the liquida-
- tor is to pay into the companies liquidation account, shall be ascertained as on the date to which the statement of receipts and payments sent in to the Registrar of Companies is brought down, and the amount to be paid to the companies liquidation account shall be the minimum balance of such money which the liquidator has had in his hands or under his control during the 6 months immediately preceding the date to which the statement is brought down, less such part (if any) thereof as the Official Receiver may authorise him to retain for the immediate pur poses of the liquidation. Such amount shall be paid into the companies liquidation account within 14 days from the date to which the statement of account is brought down.
(3) Notwithstanding anything in this rule, any moneys represent ing unclaimed or undistributed assets or dividends in the hands of the liquidator at the date of the dissolution of the company shall forthwith be paid by him into the companies liquidation account.
LAWS OF BRUNEI
Companies CAP. 39 403
(4) A liquidator whose duty it is to pay into the companies li quidation account money representing unclaimed or undistributed assets of the company shall pay in the same through the Official Receiv er and shall be entitled to a certificate of receipt for the money so paid in
Form 105. Form 105
(5) In a voluntary winding up or a winding up under the supervi sion of the Court money invested or deposited at interest by a liquidator shall be deemed to be money under his control, and when such money forms part of the minimum balance payable into the companies liquida tion account pursuant to paragraph (2) of this rule, the liquidator shall realise the investment or withdraw the deposit, and shall pay the pro ceeds into the companies liquidation account, provided that where the money is invested in Government securities, or such securities as the Court may direct, such securities, may, with the permission of the Court, be transferred to the control of the Official Receiver instead of being forthwith realised and the proceeds thereof paid into the com panies liquidation account. In the latter case, if and when the money represented by the securities is required wholly or in part for the pur poses of the liquidation, the Official Receiver may realise the securities wholly or in part and pay the proceeds of realisation into the companies liquidation account and deal with the same in the same way as other monies paid into the said account may be dealt with.
184. In a voluntary winding up or in a winding up under the supervi sion of the Court, every person who has acted as liquidator of any company, whether the liquidation has been concluded or not, shall fur nish to the Official Receiver particulars of any money in his hands or under his control representing unclaimed or undistributed assets of the company and such other particulars as the Official Receiver may require for the purpose of ascertaining or getting in any money payable into the companies liquidation account at the bank. The Official Receiver may require such particulars to be verified by affidavit.
185. (1) In a voluntary winding up or in a winding up under the super vision of the Court, the Official Receiver may at any time order any such person to submit an account verified by affidavit of the sums received and paid by him as liquidator of the company and may direct and en force an audit of the account.
Liquidator to furnish information to Official Receiver
Form 97
Official Receiver may call for verified accounts Forms 92
to 96
(2) For the purposes of section 270 of the Act, and the rules, the
Court shall have, and, at the instance of the Official Receiver, may
exercise all the powers conferred by the Bankruptcy Act with respect to Cap. 67
the discovery and realisation of the property of a debtor, and the provi-
B.L.R.O. 111984
LAWS OF BRUNEI
404
CAP. 39 Companies
sions of that Act with respect thereto shall, with any necessary modifica
tion, apply to proceedings under section 270 of the Act.
Application to the Court for enforcing an account and getting in money
Application for payment out by person entitled
Application by liquidator for payment out
Proceedings for release of liquidator. Forms98, 99 and 100
Disposal of books and papers
186. An application by the Official Receiver for the purpose of ascer taining and getting in money payable into the bank pursuant to section 270 of the Act, shall be made by motion.
187. An application by a person claiming to be entitled to any money paid into the bank in pursuance of section 270 of the Act, shall be made in such form and manner as the Official Receiver may from time to time direct, and shall, unless the Official Receiver otherwise directs, be accompanied by the certificate of the liquidator that the person claiming is entitled and such further evidence as the Official Receiver may direct.
188. A liquidator who requires to make payments out of money paid into the bank in pursuance of section 270 of the Act, either by way of distribution or in respect of the cost and expenses of the proceedings, shall apply in such form and manner as the Official Receiver may direct, and the Official Receiver may thereupon either make an order for pay ment to the liquidator of the sum required by him for the purposes aforesaid, or may direct cheques to be issued to the liquidator or trans mission to the persons to whom the payments are to be made.
RELEASE OF LIQUIDATOR IN A WINDING UP BY THE COURT
189. (1) A liquidator in a winding up by the Court before making application to the Court for his release, shall give notice of his intention so to do to all the creditors who have proved their debts and to all the contributories, and shall send with the notice a summary of all receipts and payments in the winding up.
(2) When the 'Court has granted to a liquidator his release, a notice of the order granting the release shall be gazetted. The liquidator shall provide their requisite payment for the Gazette, which he may charge against the company's assets.
190. (1) The Court may order that the books and papers of a company which has been wound up shall not be destroyed for such period (not exceeding 5 years from the dissolution of the company) as the Court thinks proper.
(2) Any creditor or contributory may make representations to the Court with regard to the destruction of such books and papers.
LAWS OF BRUNEI
Companies CAP. 39 405
(3) A resolution for the destruction of the books and papers of such a company within the said period of 5 years or any shorter period fixed by an order of the Court in force at the date of such resolution shall not take effect until the expiration of such period of 5 years or of such shorter peripd unless the Court shall otherwise direct.
(4) At least one week's notice shall be given to the Official Re ceiver of any application to the Court for an order for destruction of the books and papers of a company before the expiration of such period of 5 years or shorter period.
OFFICIAL RECEIVERS
191. (1) Judicial notice shall be taken of the appointment of the Appointment
Official Receiver appointed by His Majesty.
(2) When His Majesty appoints any officer to act as deputy for or in the place of an Official Receiver notice thereof shall be given in the Gazette.
(3) Any person so appointed shall, during his tenure of office, have all the status, rights, and powers, and be subject to all the liabilities of an Official Receiver.
192. Where an Official Receiver is removed from his office by His Removal
Majesty, notice of the order removing him shall be published in the
Gazette.
193. The Court may, by general or special directions determine what acts or duties of the Official Receiver in relation to the winding up of companies are to be performed by him in person, and in what cases he may discharge his functions through the agency of his clerks or other persons in his regular employ, or under his official control.
Personal performanee of duties
194. An assistant official receiver, appointed by His Majesty, shall be an officer of the Court, as fully as the Official Receiver to whom he is assistant, and, subject to the directions of the Court he may represent the Official Receiver in all proceedings in Court, or in any administra tive or other matter. Judicial notice shall be taken of the appointment of an assistant official receiver and he may be removed in the same manner as is provided in the case of an Official Receiver.
Assistant Official Reeeivers
B.L.R.O.l/1984
LAWS OF BRUNEI
406
Powers of certain officers and Official Receivers' clerks in certain cases to act for Official Receivers
Duties where no assets
Accounting by Official Receiver
Official Receiver to act as committee of inspection where no committee of inspection appointed
195. In the absence of the Official Receiver any officer duly authorised for the purpose by His Majesty, and any clerk of the Official Receiver duly authorised by him in writing, may by leave of the Court act on behalf of the Official Receiver, and take part for him in any public or other examination and in any unopposed application to the Court.
196. Where a company against which a winding up order has been made has no available assets, the Official Receiver shall not be required to incur any expense in relation to the winding up without the express directions of the Court.
197. (1) Where a liquidator is appointed by the Court in a winding up by the Court, the Official Receiver shall account to the liquidator.
(2) If the liquidator is dissatisfied with the account or any part thereof, he may report the matter to the Court, which shall take such action (if any) thereon as it may deem expedient.
(3) The provisions of these rules as to liquidators and their accounts shall not apply to the Official Receiver when he is liquidator, but he shall account in such manner as the Court may from time to time direct.
198. Where there is no committee of inspection in a winding up by the Court any functions of the committee of inspection which devolve on the Court may, subject to the directions of the Court, be exercised by the Official Receiver.
Aptk:als from 199. An appeal to the Court from an act or decision of the Official
! r Receiver acting otherwise than as liquidator of a company, shall be
brought within 21 days from the time when the decision or act appealed
against is done, pronounced, or made.
Applications under sec tions 189 and
262 (3) of the
Act
200. (1) An application by the Official Receiver to the Court to ex amine on oath the liquidator or any other person pursuant to section 189 of the Act or to confer on the Official Receiver or on any person designated by him for the purpose with respect to the company concerned the powers of investigating the affairs of the company, men tioned in subsection (3) of section 262 of the Act shall be made ex parte, and shall be supported by a report to the Court filed with the Registrar, stating the circumstances in which the application is made.
(2) The report shall be signed by the Official Receiver; and shall for the purposes of such application be prima facie evidence of the statement therein contained.
LAWS OF BRUNEI
Companies CAP. 39 407
BOOKS TO BE KEPT AND RETURNS MADE BY OFFICERS OF COURT
201. (l) The Registrar of the Court shall keep books according to the Forms in the Appendix, and the particulars given under the different heads in such books shall be entered forthwith after each proceeding has been concluded.
(2) The books shall at all times be open to inspection by the Official Receiver, and the officers of the Court whose duty it is to keep the books prescribed by these rules shall furnish the Official Receiver with such information and returns as the Official Receiver may from time to time require.
GAZETTING IN A WINDING UP BY THE COURT
Books to be kept by officers of I he Court
Forms 101
and 102
202. (1) All notices subsequent to the making by the Court of a wind- Gazetting
ing up order in pursuance of the Act or the rules requiring publication in 103 (1)
the Gazette shall be gazetted by the Official Receiver. to (9)
(2) Where any winding up order is amended, and also in any case in which any matter which has been gazetted has been amended or altered, or in which a matter has been wrongly or inaccurately gazetted, the Official Receiver shall re-gazette such order or matter with the necessary amendments and alterations in the prescribed form, at the expense of the company's assets, or otherwise as the Court may direct.
203. (1) Whenever the Gazette contains any advertisement relating to any winding up proceedings the Official Receiver or liquidator as the case may be shall file with the proceedings a memorandum referring to and giving the date of the advertisement. '
(2) In the case of an advertisement in a local paper, the Official Receiver or liquidator as the case may be shall keep a copy thereof and a memorandum referring to and giving the date of the advertisement shall be placed on the file.
(3) For this purpose one copy of each local paper in which any advertisement relating to any winding up proceeding in the Court is inserted, shall be left with the Official Receiver or liquidator as the case may be by the person who inserts the advertisement.
(4) A memorandum under this rule shall be until the contrary is proved be evidence that the advertisement to which it refers was duly inserted in the issue of the Gazette or newspaper mentioned in it.
Filing memoran dum of Gazette notices Form 104
BLR.O. 111984
LAWS OF BRUNEI
408
ARRESTS AND COMMITMENTS
To whom 204. A warrant of arrest, or any other warrant issued under the provi
: J3:!s'!Jsions of the Act and rules, may be addressed to such bailiff or officer of
the Court or police officers as the Court may in each case direct.
Prison to which person arrested on warrant is to betaken
Prison to which a person arrested is to be conveyed, and production and custody of persons arrested
Disposal of monies received after execution
205. Where the Court issues a warrant for the arrest of a person under any of the provisions of the Act or rules, he shall be committed, unless the Court shall otherwise order, to the prison used by the Court in cases of commitment made in the exercise by the Court of its ordinary juris diction.
206. Where a person is arrested under a warrant of commitment issued under any of the provisions of the Act and rules, other than sections 206 and 209 of the Act, and rule 56 he shall be forthwith conveyed in cus tody of the bailiff or officer apprehending him to the prison used by the Court in cases of commitment made in the exercise by the Court of its ordinary jurisdiction and kept therein for the time mentioned in the warrant of commitment, unless sooner discharged by the order of the Court or otherwise by law. Where a person is arrested under a warrant, issued under section 206 or 209 of the Act, or under rule 56, he shall be forthwith conveyed in custody of the bailiff or officer apprehending him to such prison as aforesaid; and the Superintendent of Prisons shall produce such person before the Court as it may from time to time direct, and shall safely keep him until such time as the Court shall otherwise order, or such person shall be otherwise discharged by Ia w.
MISCELLANEOUS MATIERS
207. (1) Where any money is seized or received by the bailiff in part satisfaction of an execution against the goods of a company the same shall be paid into Court to the credit of a ledger account in the name of the bailiff with a sub-title in the matter of the action and if, before the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that a provisional liquidator has been appointed or that a winding up order has been made or that a resolution for voluntary winding up has been passed, the bailiff shall forthwith inform the Registrar of the service of such notice and the Registrar shall, on being so required, deliver any money so seized or received in part satisfaction of the execution to the liquidator after deducting therefrom the costs of the execution.
LAWS OF BRUNEI
Companies CAP. 39 409
(2) Where under an execution in respect of a judgment for a sum exceeding $200 the goods of a company are sold or money is paid in order to avoid a sale, the proceeds of sale or money paid in order to avoid a sale shall be paid into Court to the credit of a ledger account in the name of the bailiff with a sub-title in the matter of the action and shall be retained for 14 days from the date of such sale or payment in order to avoid sale, and if within such 14 days notice is served on the bailiff of a petition for the winding up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company, the bailiff shall forthwith notify the Registrar of the service of such notice and if an order is made or a resolution is passed, as the case may be, for the winding up of the company, the Registrar shall deduct the costs of the execution and shall pay the balance to the liquidator.
(3) Payment by the bailiff into Court in pursuance of this rule shall be a good discharge to him as against the liquidator.
208. The Court may, in any case in which it shall see fit, extend or Enlargement abridge the time appointed by the rules or fixed by any order of the ridgment Court for doing any act or taking any proceeding. of time
209. (1) No proceedings under the Act or the rules shall be invali dated by any formal defect or by any irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irre gularity, and that the injustice cannot be remedied by any order of the Court.
(2) No defect or irregularity in the appointment or election of an Official Receiver, liquidator, or member of a committee of inspection shall vitiate any act done by him in good faith.
210. In all proceedings in or before the Court, or any Registrar or officer thereof, or over which the Court has jurisdiction under the Act and rules, where no other provision is made by the Act or rules, the practice, procedure and regulations shall, unless the Court otherwise in any special case directs, be in accordance with the rules and practice of the Court.
Formal defect not to invalidate proceedings
Application of existing procedure
B.L.R.O.l/1984
-
(b) Name and description of applicant. (c)State ob ject of ap plication
noon on the hearing of an application of (b) for an order that (c)
Dated the day of 19
This summons was taken out by of Solicitors
for
To
NOTE-If you do not attend. either in person or by your solicitor. at the time and place above-mentioned. such order will be made. and proceedings taken as the Judge (or Registrar) may think just and expedient.
FORM 2 (rule 22)
Petition
(Title)
(a) Insert full name. title. ete.. of peti tioner
(b) State the full address ofthe re istered otfice so as suf ficiently to show where it is situate
To the Supreme Court of Brunei Darussalam
The humble petition of (a) showeth as follows
1. The Company, Berhad (hereinafter called the com- pany), was in the month of • incorporated under the Com- panies Act.
2. The registered office of the company is at (b)
3. The nominal capital of the company is $ , divided into shares of $ each. The amount of the capital paid up or credited as paid up is $
LAWS OF BRUNEI
Companies CAP. 39 411
4. The objects for which the company was established are as fol
lows-
To
and other objects set forth in the memorandum of association thereof.
[Here set out in paragraphs the facts on which the petitioner relies, and conclude as follows]-
your petitioner therefore humbly prays as follows -
( l) That the Company Berhad may be wound up by the
Court under the provisions of the Companies Act.
(c) (That the voluntary winding up of the Company Berhad may be continued but subject to the supervision of the Court).
(c) Add words in brackets if su pervision order is asked
(2)
Or that such other order may be made in the premises as shall for
be just.
NOTE-( d) It is intended to serve this petition on
FORM 3 (rule 22)
Petition by Unpaid Creditor on Simple Contract
(Title)
Paragraphs 1, 2, 3, and 4 as in Form 2.
5. The company is indebted to your petitioner in the sum of
$ for (a)
6. Your petitioner has made application to the company for pay ment of his debt, but the company has failed and neglected to pay the same or any part thereof.
7. The company is [insolvent and] unable to pay its debts.
8. In the circumstances it is just and equitable that the company should be wound up.
Your petitioner, therefore, etc. [as in Form 2].
(d) This note will be un necessary if the company is petitioner
(a) State con sideration for the debt, with particulars so as to establish that the debt claimed is
due
B.L.R.O.l/1984
LAWS OF BRUNEI
412
(a) If the winding up is to be subject to supervi sion, insert instead of "by" the words "sub ject to the su pervision of"
(b) To be signed by the solicitor to
the petitioner
CAP. 39 Companies
FORM 4 (rule 24) Advertisement of Petition
(Title)
Notice is hereby given that a petition for the winding up of the above-named company by (a) the Supreme Court of Brunei was, on the day of 19 , presented to the said Court by the
said company [or, as the case may be]. And that said petition is directed
to be heard before the Court at .m. on the day of
19 ; and any creditor or contributory of the said com- pany desirous to support or oppose the making of an order on the said petition may appear at the time of hearing by himself or his counsel for that purpose; and a copy of the petition will be furnished to any creditor or contributory of the said company requiring the same by the under signed on payment of the regulated charge for the same.
Signed (b) [Name] [Address]
or by the
petitioner if
he has no solicitor
NOTE-Any person who intends to appear on the hearing of the said petition must serve on or send by post to the above-named, notice in writing of his intention so to do. The notice must state the name and address of the person, or, if a firm, the name and address of the firm, and must be signed by the person or firm, or his or their solicitor (if any), and must be served, or if posted, must be sent by post in sufficient time to reach the above-named not later than 6 o'clock in the afternoon of the of
19 .
FORM 5 (rule 25)
Affidavit of Service of Petition on Members, Officers, or Servants, &c.
(Title)
In the matter of a petition dated
I, , of , make oath and say
1. [In the case of service of petition on a company by leaving it with a member, officer, or servant at the registered office, or if no registered office at the principal or last known principal place of business of the company.]
LAWS OF BRUNEI
Co_mpanies CAP. 39 413
That I did on day, the day of
19 , serve the above-named company with the above- mentioned petition by delivering to and leaving with [name and description] a member (or officer) (or servant) of the company a copy of the above-mentioned petition, duly sealed with the seal of the Court, at [office or place of business as aforesaid], before the hour of
in the noon.
2. [In the case of no member, officer, or servant of the company being found at the registered office or place of business.]
That I did on day, the day of
19 , having failed to find any member, officer, or servant of the above-named company at [here state registered office or place of business], leave there a copy of the above-mentioned petition, duly sealed with the seal of the Court, before the hour of in the noon [add with whom such sealed copy was left, or where,
e.g. affixed to door of offices, or placed in letter box, or otherwise].
3. [In the case of directions by the Court as to the member, or members, officer, or servant of the company to be served.]
That I did on day, the day of
19 , serve [name or names and description] with a copy of the above-mentioned petition, duly sealed with the seal of the Court, by delivering the same personally to the said , at [place] before the hour of in the noon.
4. The said petition is now produced and shown to me, marked
"A''.
Sworn at, &c.
FORM 6 (rule 25)
Affidavit of Service of Petition on Liquidator
(Title)
In the matter of a petition, dated , for winding up the above company [by) or [under the supervision of) the Court [as the case may be].
I, , of , make oath and say
That I did, on day, the day of
19 , serve [name and description] the liquidator of the
B.L.R.O. 111984
LAWS OF BRUNEI
414
above-named company, with a copy of the above-mentioned petition, duly sealed with the seal of the Court, by delivering the same personally to the said , at [place], before the hour of in the
noon.
The said petition is now produced and shown to me, marked "A". Sworn at, &c.
-
FORM 7 (rule 26)
Affidavit Verifying Petition
(Title)
(a) If the petition is by a firm, insert "the acts and deeds of my said firm"
I, A.B., of &c., make oath and say, that such of the statements in the petition is now produced and shown to me, and marked with the letter "A", as relate to (a) my own acts and deeds are true, and such of the said statements as relate to the acts and deeds of any other person or persons I believe to be true.
Sworn, &c.
FORM 8 (rule 26)
Affidavit Verifying Petition of a Limited Company
(Title)
I, A.B., of, &c., make oath and say as follows-
1. I am (a director) (the secretary) of Company Berhad, the petitioner in the above matter, and am duly authorised by the said petitioner to make this affidavit on its behalf.
2. That such of the statements in the petition now produced and shown to me marked with the letter "A", as relate to the acts and deeds of the said petitioner or to my own acts and deeds, are true, and such of the statements in the said petition as relate to the acts and deeds of any other corporation, person or persons I believe to be true.
Sworn, &c.
LAWS OF BRUNEI
Companies CAP. 39 415
FORM 9 (rule 28)
Order Appointing a Provisional Liquidator after Presentation of
Petition, and before order to Wind Up
the day of 19
(Title)
Upon the application, &c., and upon reading, &c., the Court doth hereby appoint the Official Receiver (or as may be) to be provisional liquidator of the above-named company. And the Court doth hereby limit and restrict the powers of the said provisional liquidator to the following acts, that is to say [describe the acts which the provisional liquidator is to be authorised to do and the property of which he is to take possession].
NOTE-It will be the duty of the person who is at the time secretary of chief officer of the company and of such of the persons who are liable to make out or concur in making out the company's statement of affairs as the Official Receiver may require, to attend on the Official Receiver at such time and place as he may appoint and to give him all information he may require.
FORM 10 (rule 30)
Notice of Intention to Appear on Petition
(Title)
Take notice that A.B., of (a) a creditor for $ of (or contributory holding (b) shares in) the above company in tends to appear on the hearing of the petition advertised to be heard on the day of , 19 , and to support (or oppose) such petition.
(Signed) (c)
[Address]
To
(a) State full name, or if a firm, the name of the firm and address.
(b) State number and class of
shares held. (c) To be signed by the person or his solicitor or agent
B.L.R.O.l/1984
LAWS OF BRUNEI
416 CAP. 39 Companies
FORM 11 (rule 31) -
List of Parties Attending the Hearing of a Petition
(Title)
The following are the names of those who have given notice of their intention to attend the hearing of the petition herein, on the
day of 19 -
FORM 12 (rule 34)
Notification to Official Receiver of Winding-Up Order
(Title)
To the Official Receiver
(Address)
Order pronounced this day by [or, as the case may be] for winding up the under-mentioned company under the Companies Act.
Name of company | Registered office of company | Pctitloner's soUcltor | Date of presentation of petition |
LAWS OF BRUNEI
Companies CAP. 39 417
FORM 13 (rule 34)
Notification to Officia1 Receiver of Order Pronounced for Appointment of
Provisional Liquidator Prior to Winding-Up Order being made
(Title)
To the Official Receiver
(Address)
Order pronounced this day by [or, as the case may be] for the appointment of the Official Receiver (or, as the case may be, the name, address and description of the person appointed) as provisional liquidator prior to any winding-up order being made.
Name of company | Registered office of company | Petitioner's soJicitor | Date of presentation of petition |
FORM 14 (rule 35)
Order for Winding-Up by the Court day of '19
(Title)
Upon the petition of the above named company (or A.B., of &c., a creditor (or contributory) of the above named company), on the day of 19 , preferred unto the Court, and
upon hearing for the petitioner, and for and upon reading the said petition, an affidavit of (the said
petitioner), filed, &c., verifying the said petition, an affidavit of L.M.,
B.L.R.O. 111984
LAWS OF BRUNEI
418 CAP. 39 Companies
filed the day of 19 , the Gazette of the day of 19 , the newspaper of the day of (enter any other papers), each containing
an advertisement of the said petition (enter any other evidence), this
Court doth order that the said .................. company be wound up by this Court under the provisions of the Companies Act, and that the Official Receiver, or as the case may be, be constituted provisional liquidator of the affairs of the company.
And it is ordered that the costs of of the said petition be taxed and paid out of the assets of the said company.
NOTE-It will be the duty of the secretary or chief officer of the company and of such of the persons who are liable to make out or concur in making out the company's state ment of affairs, as the Official Receiver may require, to attend on the Official Receiver at such time and place as he may appoint and to give him all information he may require.
FORM 15 (rule 36 (2) )
Order for Winding-Up Subject to Supervision day the day of 19 (Title)
Upon the petition, &c., this Court doth order that the voluntary winding up of the said Company, Berhad, be continued, but subject to the supervision of this Court; and any of the proceedings under the said voluntary winding up may be adopted as the Court shall think fit; and it is ordered that the liquidator appointed in the voluntary winding up of the said company, or other the liquidator for the time being, do on the day of next, and thenceforth every 3 months file with the Registrar a report in writing as to the position of, and the progress made with, the winding up of the said company, and with the realisation of the assets thereof, and as to any other matters connected with the winding up as the Court may from time to time direct. And it is ordered that no bills of costs, charges, or expenses, or special remuneration of any solicitor employed by the liquidator of the said company, or any remuneration, charges or ex penses of such liquidator, or of any manager, accountant, auctioneer, broker, or other person, be paid out of the assets of the said company, unless such costs, charges, expenses, or remuneration, shall have been taxed or allowed by the Registrar. And it is ordered that all such costs,
LAWS OF BRUNEI
Companies CAP. 39 419
charges expenses, and remuneration, be taxed and ascertained accor dingly. And it is ordered that the costs of the petitioner and of [here insert any directions as to allowance of costs of petitioner and of persons appearing]. And the creditors, contributories, and liquidator of the said company, and all other persons interested, are to be at liberty to apply generally as there may be occasion.
FORM 16 (rule 36 (1) )
Notice of Order to Wind-Up (For Newspaper) COMPANIES ACT, CAP. 39
In the matter of , Berhad.
Winding-up order made ' 19
Date and place of first meetings - Creditors '19 , at Contributories , 19 , at
Official Receiver and
Provisional Liquidator
FORM 17 (rule 38)
Affidavit by Special Manager Verifying Account
(Title)
I, of make oath and say as follows -
1. The account hereunto annexed, marked with the letter "A", produced and shown to me at the time of swearing this my affidavit, and purporting to be my account as special manager of the estate or business of the above-named company, contaius a true account of all and every sums and sum of money received by me or by any other person or persons by my order or to my knowledge or belief for my use on account or in respect of the said estate or business.
B.L.R.O. 111984
LAWS OF BRUNEI
420
2. The several sums of money mentioned in the said account hereby verified to have been paid or allowed have been actually and truly so paid and allowed for the several purposes in the said account mentioned.
3. The said account is just and true in all and every the items and particulars therein contained, according to the best of my knowledge and belief.
Sworn &c. -
FORM 18 (rule 109)
Notice to Creditors of First Meeting
(Title)
(Under the order for winding up the above-named company, dated the day of , 19 .)
Notice is hereby given that the first meeting of creditors in the above matter will be held at on the day of
19 , at o'clock in the noon.
To entitle you to vote thereat your proof must be lodged with me not later than o'clock on the day of
19
Forms of proof and of general and special proxies are enclosed herewith. Proxies to be used at the meeting must be lodged with me not later than o'clock on the day of
19
Official Receiver
Address
(a) Here in sert "has not been lodged" or "has been lodged, and
summary is
enclosed"
(The statement of the company's affairs (a))
Note
At the first meetings of the creditors and contributories they may amongst other things -
1. By resolution determine whether or not an application is to be made to the Court to appoint a liquidator in place of the Official Receiver.
LAWS OF BRUNEI
Companies CAP. 39 421
2. By resolution determine whether or not an application shall be made to the Court for the appointment of a committee of inspection to act with the liquidator, and who are to be the members of the committee if appointed.
Note-If a liquidator is not appointed by the Court the Official Re
. ceiver will be the liquidator.
FORM 19 (rule 109)
Notice to Contributories of First Meeting
(Title)
Notice is hereby given that the first meeting of the contributories in the above matter will be held at on the day of
19 , at o'clock in the noon.
Forms of general and special proxies are enclosed herewith. Proxies to be used at the meeting must be lodged with me not later than
o'clock on the day of 19
Dated this day of '19
Official Receiver
Address
(The company's statement of affairs (a)
Note
At the first meetings of creditors and contributories they may amongst other things -
1. By resolution determine whether or not an application shall be made to the Court to appoint a liquidator in place of the Official Receiver.
2. By resolution determine whether or not an application shall be made to the Court for the appointment of a committee of inspection to act with the liquidator, and who are to be the members of the committee if appointed.
Note-If a liquidator is not appointed by the Court the Official Re
ceiver will be the liquidator.
(a) Here in sert "has not been lodged" or "has been lodged, and summary is enclosed"
B.L.R.O. 111984
LAWS OF BRUNEI
422
(a) Here in sert place where meet ingwill be held
(b) Insert name of per son required to attend
FORM 20 (rule 110) -
Notice to Directors and Officers of Company to Attend First Meeting of
Creditors or Contributories
(Title)
Take notice that the first meeting of creditors [or contributories]
will be held on the day of , 19 , at o'clock at (a) and that you are required to attend
thereat, and give such information as the meeting may require.
Dated this day of '19
To (b) Official Receiver
NOTE-The failure of any director or officer to attend will be reported by the Official
Receiver to the Court.
FORM 21 (rule 123 (2) )
Memorandum of Proceedings at Adjourned First Meeting
(No quorum)
(Title)
Before
at
, 19 , at
on the o'clock.
day of
(a) Insert "creditors" or "contribu tories", as
the case may be
Memorandum.-The adjourned meeting of (a) in the above matter was held at the time and place above-mentioned; but it appearing that there was not a quorum of (a) qualified to vote present or represented, no resolution was passed, and the meeting was not further adjourned.
Chairman
LAWS OF BRUNEI
Companies CAP. 39 423
FORM 22 (rule 130)
List of Creditors (a) Present to be Used at Every Meeting
(a) "Or con
tributories"
(b) In case of | |||||
(Title) | contributor | ||||
ies insert | |||||
"number'" of | |||||
Meeting held at | this | day of | '19 | shares'" and "number of |
votes accord ing to the reg ulations of
the com
pany"
-
Zl B.L.R.O. 111984
LAWS OF BRUNEI
424 CAP. 39
Companies
FORM 23 (rule 39) Statement of Affairs
(Title)
STATEMENT
OF AFFAIRS
on the day of
19 , the date of the winding-up order (or such other date
as the Official Receiver has for special reasons directed)
I.-As regards Creditors
Gro!ts liabili ties
Liabilities
Assets
c.
Debts and liabilities, viz-
(a) ................. Unsecured
creditors as per List "A'' (state
number).
c.
(b) ......... ..... creditors fully secured (not in· eluding debenture hoi· derS), as per List "B" Estlmated value of securities
Estimated
surplus $ Carried to List
"C"
Balance to con-
tra(d) ............... $
(c) .............. creditors
t.t::1.rc c... $
Less estimated value
of securities ...."....
Estimated to rank for dividend , ...
$ c.
(d) Liabilities on bills
discounted other than
the company's own
accepta':!ce,fr value, asperList D .. ,..... Of which it is expected
will rank for di
vidend
Ie) Other liabilities as perList"E"
Of which it is expected will rank for di- vidend .................
..................................
(f) creditor ..F fer ::!: taxes, wages, &c., as per List "F" deducted contra ................. $
c. c.
(a) Property as per LISt "H", v•z·-- a) Cash at bankers . b)Cashmhand. .
[c) Stock m trade .
(Estimated cost,$ )
f!fl. i ':.'lu; ;. fi;;j g;. t ii :
&c...............................
Investments in shares, &c.
Loans on mortgage.
h Other property, viz-
(b) Book debts (
debtors). as per List "'I", viz-
Good ..............
$ c.
Doubtful. Bad
Estimated to produc
c.
(c) Bills of exchange, or
other similar securities
on hand. as per List
"J" .......................
Estimated to produce
(d) Surplus from securities in the hands of creditors fully secured (per con tra) (b) .
c.
(e) Unpaid calls (
d bt rs},• as per
List K .......... ..
Estimated to produce -- Estimated total """'t• .................
Deduct preferential creditors as per
contraU) ............................
Estimated amount avaHab1e to meet claims of debenture holders .......
(g) Loan
benture
as per
deducted tra(
on de-
bonds,
List "G"
con-
Dtduct loans on debenture bonds
secured on the assets of the com-
pany as per contra (g) ...............
r--
holders) ..
The nominal amount of unpaid t;apitalliabte to be called up is$ which is
(available to meet above deficiency] or (charged to debenture holders],
or as the case may be.
LAWS OF BRUNEI
Companies CAP. 39 425
FORM 23-Continued
Statement of Affairs
I.-As regards Creditors (Continued)
Estimated surplus (if any) after meet· ing liabilities of company, subject to cost ofliquidation ...................... | -r | c. -- | Estimated amount available to meet unse1;ured creditors) subject to cost ofliquidation . ........................ Estimated deficiency of "'"-''"' to meet liabilities of the company, subject to | c, | |||
Estimated surplus (if any) after meet· ing liabilities of company, subject to cost ofliquidation ...................... | -r | c. -- | cost of liquidation .................... | c, | |||
Estimated surplus (if any) after meet· ing liabilities of company, subject to cost ofliquidation ...................... | -r | c. -- |
Statement of Affairs
II.-As regards Contributories
Capital issued and allotted, viz-
Founder' Shares of
$ pershare
( Shareholders.) (a) Issued as fully paid.
Amount calJed up at
$ pershare.
as per List "L"
Ordinarv Shares of $
c. $ c.
Estimated surplus as above (if any)
subject to cost of liquidation
$ c,
(a) Where capital is issued as
the form
per share(
holders.)
(a) Issued as fully paid.
Share-
should be altered accor
Amount caHed up at
$ . .. .. per share
as per List M .....
Preference Shares of$
dingly
per share (
holders.)
(a) Issued as fully paid.
Share·
Amount called up at
$ pershare,
as per List
(b)
Amount. if any, paid in advance
of calL
$
Less unpaid caiJs estimated to be irre- coverable ..... . $
-'--
(b) Add par ticulars of any other capital
Add deficiency to meet liabilities
as above .
Total d c!7ncy as OAplained in State-
ment 0 .......................... --
-- I,
of make oath and say that the foregoing are, to the best of my knowledge and belief, a full, true, and
complete statement of the affairs of the above-named company, on the day of 19 , the date of the winding-up
order (a).
Sworn at
in Brunei Darussalam
Before me.
this day of 19
Magistrate
Signature
B.L.R.O. 111984
LAWS OF BRUNEI
426 CAP. 39 Companies
Note.-The Magistrate is particularly requested, before swearing the affidavit, to ascertain that the full name, address, and description of the deponent are stated, and to initial all crossings-out or other alterations on the printed form. A deficiency in the affidavit in any of the above respects will entail its refusal by the Court, and will necessitate its being re-sworn.
(a) Where the Official Receiver has directed any date other than the date of the winding-up order substitute such other date.
-
LIST "A"
UNSECURED CREDITORS
The names to be arranged in alphabetical order and numbered consecutively, creditors for $100 and upwards being placed first.
Notes.-1. When there is a contra account against the creditor, less than the amount of his claim against the company, the amount of the creditor's claim and the amount of the contra account should be shown in the third column, and the balance only be inserted under the heading "Amount of Debt", thus -
$ c.
Total amount of claim ........................
Less: Contra account .........................
No such set-off should be included in List "!".
2. The particulars of any bills of exchange and promissory notes held by a creditor should be inserted immediately below the name and address of such creditor.
3. The names of any creditors who are also contributories, or alleged to be contributories, of the company must be shown separately, and described as such at the end of the List.
LAWS OF BRUNEI
Companies CAP. 39 427
No. | Name | Address and occupation | Amount debt | Date when <<>nll:acted | Considera- tion | ||
No. | Name | Address and occupation | Amount debt | Month | Year | Considera- tion | |
$ | c. |
Signature
Dated 19
LIST "B"
CREDITORS FULLY SECURED (NOT INCLUDING DEBENTURE HOLDERS)
· """ Estimated
.!l il security
-
Signature
Dated 19
B.L.R.O. 111984
LAWS OF BRUNEI
428 CAP. 39 Companies
LIST "C" -
CREDITORS PARTLY SECURED
No. 0.'::!.
"
(State whether also contributories of the company)
>. -
Signature
Dated 19
LIST "D"
LIABILITIES OF COMPANY ON BILLS DISCOUNTED OTHER THAN THEIR OWN ACCEPTANCES FOR VALUE
No. | Acceptor's name address, and occupation | Whether liable as drawer or indorser | Date when due | Amount | Holder's name, address, and occupation (if known) | Amount expected to rank for dividend | ||
$ | c. | $ | c. |
Signature
Dated 19
LAWS OF BRUNEI
Companies CAP. 39 429
LIST "E"-OTHER LIABILITIES
FULL PARTICULARS OF ALL LIABILITIES NOT OTHERWISE SCHEDULED TO BE GIVEN HERE
Nature expected to
of
liability
Considcra
Signature
Dated 19
LIST "F"
PREFERENTIAL CREDITORS FOR RATES, TAXES, SALARIES AND WAGES
I
Name of and Nature Period during Date Amount of Amount Difference
No. eredltor occupa- of which claim when claim payable ranking for tion elaim accrued due due in full dividend
$ c. $ c. $ c.
Signature
Dated 19
B.L.R.O. 111984
LAWS OF BRUNEI
430 CAP. 39 Companies
LIST "G" -
LIST OF DEBENTURE HOLDERS
The names to be arranged in alphabetical order and numbered consecutively. Separate Lists must be furnished of holders of each issue of debentures, should more than one issue have been made.
No. | Name of holder | Address | Amount | Description of assets over which security extends |
$ | c. |
Signature
Dated 19
LIST "H" PROPERTY
Full particulars of every description of property not included in any other lists are to be set forth in this list.
[State
particulars]
Signature
Dated 19
LAWS OF BRUNEI
Companies CAP. 39 431
LIST "I"
DEBTS DUE TO THE COMPANY
The names to be arranged in alphabetical order, and numbered consecutively.
NOTE.-If any debtor to the company is also a creditor, but for a less amount than his indebtedness, the gross amount due to the company and the amount of the contra account should be shown on the 3rd column, and the balance only be inserted under the heading "Amount of Debt", thus-
Due to company .................... Less: Contra account
No such claim should be included in sheet "A".
$ c.
No. | Name | Residence and occupation | Amount of debt | Folio of ledger or other book where particulars to be found | When contracted | Estimated to produce | Particulars of any sec-unttes held for debt | |||||||
No. | Name | Residence and occupation | Good | Doubtful | Bad | Folio of ledger or other book where particulars to be found | Month | Year | Estimated to produce | Particulars of any sec-unttes held for debt | ||||
$ | c. | $ | c. | $ | c. | $ | c. |
Signature
Dated 19
-
B.L.R.O. 111984
LAWS OF BRUNEI
432 CAP. 39 Companies
LIST "J"
BILLS OF EXCHANGE, PROMISSORY NOTES, &c., ON HAND AVAILABLE AS ASSETS
No. | Name of acceptor of bill or note | Address, etc. | Amount of biU or note | when | Estimated to produce | Particulars of any property held as security for b 1:: ! | ||
$ | c. | s | c. |
Signature
Dated 19
LIST "K"-UNPAID CALLS
caU per
Signature
Dated 19
LAWS OF BRUNEI
Companies CAP. 39 433
LIST "L"
LIST OF FOUNDERS' SHARES
Consecu- tive No. | Ret! :er | Name of share- bolder | Address | Nominal amount of share | No. of shares held | Amount per share called up | Total amount oalled up | ||
$ | e. | $ | <. |
Signature
Dated 19
LIST "M"
LIST OF ORDINARY SHARES
Consecu- tive No. | Register No. | Name of share- holder | Address | Nominal amount of share | No. of shares held | Amount per share called up | Total amount called up | ||
$ | c. | $ | c. |
Signature
Dated 19
LIST "N"
- LIST OF PREFERENCE SHARES
Signature
Dated 19
B.L.R.O.l/1984
LAWS OF BRUNEI
434 CAP. 39
Companies
LIST "0" (1) -
Deficiency Account
(1) DEFICIENCY ACCOUNT WHERE WINDING-UP ORDER MADE WITHIN 3 YEARS OF FORMATION OF COMPANY
= ;yi f f ma ne
c. c.
from date of formation of company to
I. Gross profit (if any) arising
company to date of winding
kc n eJ)e... .
II. Receipts, if any. during same period from undennentioned sourees-
Interest on loans .
Interest on deposits Trans
fers fees ........... .
I. Expenditure in carrying on business
date of winding-up order, viz-
III.
Amount paid on shares issued and subsequently forfeited (as per list annexed)
Other receipts. if any. during same penod not included under any of the above head ings. viz.
c. c.
II. General Expendi-
ture-
Salaries ................ . Wages not charged in Tradmg Account ..... . Rent ...............
Rates and Taxes
Lawcosts .
IV. Deficieney as per statement of affairs (Pan II) ..................
Commission ....... Interest on Loans ...... Interest on Deben- tures ..................... . Miscellaneous expend itures (as per details annexed)
III. Directors' fees from the date of formation of company to date of winding-up order
IV. Dividends declared during same period
V. Losses and depreciation written off m company's books (I)-
Bad debts.
Losses on investments .
Depreciation on property
Preliminary expenses .
VI. Losses and depreciation not written off in company's books, now written off by directors (I)-
Bad debts.
Losses on investments ................... . Depreciation on property
PreHminary expenses .
VII. Other losses and expenses
Total amount to be accounted for (2
Total amount accounted for (2)
NOTES.-(1) Where paniculars are numerous they should be inserted in a separate schedule.
(2) These figures should agree.
Signature
Dated 19
LAWS OF BRUNEI
Companies CAP. 39 435
LIST "0" (2}
Deficiency Account
(2) DEFICIENCY ACCOUNT WHERE WINDING-UP ORDER MADE MORE THAN 3 YEARS AFTER FORMATION OF COMPANY
I. Excess of assets over capital and liabilities on the (!) day of
19 (if any) as
per company's Balance Sheet
{This and any previous Ba lance Sheets to he annexed or handed to O.R.)
I!. Gross profit (if any) arising from carrying on business from the (1) day of 19 , to date of winding-up order as per Trading Account annexed ....
c. c.
I. Excess of capital and UahUitics over assets on the (J) day of
19 (if any), •• per com- pany's Balance Sheet. (This and any previou!i Balance Sheets to be annexed or handed to O.R.) ...........
IL Expenses in carrying on business from
the (I) day of
19 . to date of winding
up order. viz
JJI.
IV.
Receipt, (if any) during same period from undermentioned sourees
Interest on loans ,... Interest on deposits Transfers fees .... Amounts paid on shares
issued and subsequently
forfeited (as per lists
annexed)
Other receipts, (if any) during same penod not included under any of the above head ings ......
e. e. General Expendi-
ture
Salaries ...
Wages not eharged in
TradingAccount .....
Rent .....................
Rates and Taxes Lawcosts ..,, .....,,, ..., Commission
Interest on Loans , , ... Interest on Deben- tures ..... Miscellaneous expend
V. Deficiency as per statement of
affairs(Part II) ..................
-
Total amount to be accounted for (3i
itures (as per details annexed) .
III. Directors' fees from
(I) of
19 . to date of
winding up order
IV. Dividends declared
during same perjod
V. Losses and depreciation from the
1:: ::n o .f : ·. ·.. .ksIz
Losses on investments .
Depreciation on property ...
Preliminary expenses .
VL Losses and depreciation not written off in rompanfs books, now written off by Directors (2)
Bad debts .................. Losses on investments ........ . Depreciation of property ...... ..
Preliminary expenses
VII. Otherlosses and expenses (2) ...
Total amount accounted for (3)
NOTES. (I) 3 years before date of winding-up order.
(2) Where particulars are numerous they should be inserted in a separate schedule. (3) These figures should agree.
Signature
Dated 19
B.L.R.O. 1/1984
LAWS OF BRUNEI
436 CAP. 39 Companies
LIST "P" -
IN SUBSTITUTION FOR SUCH OF THE LISTS NAMED "A" to
"0" AS WILL HAVE TO BE RETURNED BLANK
Remarks
Where no particul(lrs are entered
:m 'J " '!r% -(}? e 0
"7v1/!,
List
Particulars, as per front sheet
should be inserted in this column
opposite thr /eft blank List or Lists ··-
A Unsecured creditors
B Creditors fully secured (not including debenture holders) . C CreditorS partly secured ...
D Liabilities on bJIJs discounted other than the company's own acceptanccsforvalue . ................ ..
E Other liabilities .
F Preferential creditors for rates, taxes, wages, &c ... G Loans on debenture bonds .
H Property
Book debts
K Unpaid calls
L
M
N Preference shares ,
0 Deficiency Account ...,
Signature
Dated 19
FORM 24 (rule 45)
Report of Result of Meeting of Creditors or Contributories
In the matter, &c.
I, A.B., the Official Receiver of the Court [or as the case may be] chairman of a meeting of the creditors [or contributories] of the above named company summoned by advertisement [or notice] dated the day of , 19 , and held on the day
of 19 , at , in the , do hereby re-
port to the Court the result of such meeting as follows
LAWS OF BRUNEI
Companies CAP. 39 437
The said meeting was attended, either personally or by proxy, by creditors whose proofs of debt against the said company
were admitted for voting purposes, amounting in the whole to the value of$ [or by contributories, holding in the whole
shares in the said company, and entitled respectively by the regulations of the company to the number of votes hereinafter mentioned].
The question submitted to the said meeting was, whether the credi tors [or contributories] of the said company wished that [here state pro posal submitted to the meeting].
The said meeting was unanimously of opinion that the said proposal should [or should not] be adopted; [or the result of the voting upon such
question was as follows:] (a)
(a) Here set out the ma jorities by which the re spective re solutions were carried
Dated this day of 19
(Signed) H. T.
Chairman
B.L.R.O. 111984
LAWS OF BRUNEI
438
·CAP. 39 Companies
FORM 25 (rule 45) -
Order Appointing Liquidator
(Title)
the day of 19
Upon the application of the Official Receiver and provisional li quidator of the above-named company, by summons dated and upon hearing the applicant in person and upon reading
the order to wind up the said company dated 19 , and the reports of the Official Receiver of the results of the meetings of creditors and contributories made to the Court and respectively dated the
, and the affidavit of as to the fitness of the liquidator hereinafter named filed . It is ordered that
of
(a) To be struck out if no committee of inspection appointed
(b) State name of newspaper (if any)
be appointed liquidator of the above-named company.
(a) It is also ordered that the following persons be appointed a committee of inspection to act with the said liquidator, namely -
And it is ordered that the said liquidator do within 7 days from the date of this order give security to the satisfaction of the Official Receiver as provided by the Companies (Winding-up) Rules, 1956.
And notice of this order is to be gazetted and advertised in the (b).
FORM 26 (rule 47)
Certificate that Liquidator or Special Manager has given Security
(Title)
This is to certify that A.B., of , who was on the day of , 19 , appointed liquidator [or special
manager] of the above-named company, has duly given security to the satisfaction of the Official Receiver.
Dated this day of 19
(Signed) J.S.
Official Receiver
LAWS OF BRUNEI
Companies CAP. 39 439
FORM 27 (rule 45) Advertisement of Appointment of Liquidator
In the matter of , Berhad.
By order of the , dated the day of
19 Mr. of has been appointed li- quidator of the above-named company with [or without] a committee of inspection.
Dated this day of 19
FORM 28 (rule 46)
Fee $3.00
Notice of Appointment of Liquidator
Members or Creditors Voluntary Winding-Up or Winding-Up by the
Court
PURSUANT TO SECTION 238
Narne of company or title of proceedings (as the case may be) To The Registrar of Companies.
I, (or We) of hereby give you notice that I (or We) have been appointed liquidator(s) of Company, Berhad by (a)
(Signature)
(b)
Dated this day of 19
Presented for filing by
(a) State whether appointed by resolution of the company or by the cre ditors or by order of the Court and give date of resolution or order
(b)To be signed by each liquida· tor if more than one
B.L.R.O. 111984
-
Upon reading the reports of the Official Receiver matter, dated respectively the day of
day of 19 and
in the above
19 , the
It is ordered that the several persons whose names and addresses are set forth in the schedule hereto do attend before the Court on a day and at a place to be named for the purpose, and be publicly examined as to the promotion or formation of the company, :md as to the conduct of the business of the company, and as to their conduct and dealings as directors or officers of the company.
THE SCHEDULE REFERRED TO
Name | Address | Conncxion with the company |
FORM 30 (rule 54)
Order Appointing a Time for Public Examination
(Title)
Upon the application of the Official Receiver in the above matter, it is ordered that the public examination of who, by the order of the Court dated the day of 19 , was directed to attend before the Court to be publicly examined, be held at
the High Court on the | day | of | 19 | , at |
o'clock in the | noon. |
And it is ordered that the above named place and time above-mentioned.
Dated this day of 19
do attend at the
NOTES-Notice is hereby given that if you, the above-named fail, with- out reasonable excuse, to attend at the time and place aforesaid, you will be liable to be committed to prison without further notice.
LAWS OF BRUNEI
Companies CAP. 39 441
FORM 31 (rule 54)
Notice to Attend Public Examination
(Title)
Whereas by an order of this Court, made on the day of
19 , it was ordered that you, the undermentioned should attend before the Court on the day and at a place to
be named for the purpose, and be publicly examined as to the promo tion or formation of the company, and as to the conduct of the business or the company, and as to your conduct and dealings as (a)
And whereas the day of 19 , at o'clock, in the noon before the sitting
at has been appointed as the time and place for holding the
said examination.
Notice is hereby given that you are required to attend at the said time and place, and at any adjournments of the examination which may be ordered, and to bring with you and produce all books, papers, and writing and other documents in your custody or power in any way relat ing to the above-named company.
And take notice that if you fail, without reasonable excuse, to attend at such time and place, and at the adjournments of the said public examination which may be ordered, you will be liable to be committed to prison without further notice.
Dated this day of 19
To
Official Receiver
FORM 32 (rule 60)
Application for Appointment of Shorthand Writer to Take Down Notes of Public Examination and Order Thereon
(Title) Ex parte the Official Receiver.
I, the Official Receiver herein, do hereby, pursuant to
rule 60 of the Companies (Winding Up) Rules, apply to the Court for an order for the appointment of of to take down in
(a) Insert director or as the case officer [or may be]
B.L.R.O. 111984
LAWS OF BRUNEI
442 CAP. 39 Companies
shorthand the notes of examination of at their public ex amination, the costs of taking such notes, and of making a transcript thereof, to be paid in accordance with rule 60.
Dated this day of 19
Official Receiver -
Before
Upon the application of the Official Receiver the Court hereby appoints of to take down in short hand the notes of examination of the persons mentioned in the above application at their public examination, or at any adjournment thereof pursuant to rule 60 of the Companies (Winding Up) Rules the costs of taking such notes, and of making a transcript thereof, to be paid in accordance with rule 60.
Dated this day of 19
FORM 33 (rule 60)
Declaration by Shorthand Writer
(Title)
Before
I, , of , the shorthand writer appointed by this Court to take down the examination of , do solemnly and sincerely declare that I will truly and faithfully take down the ques tions and answers put to and given by the said in this matter, and will deliver true and faithful transcripts thereof as the Court may direct.
Dated this day of 19
[Declared before me at the time and place mentioned.]
above-
LAWS OF BRUNEI
Companies CAP. 39 443
FORM 34 (rule 57)
Notes of Public Examination where a Shorthand Writer is Appointed
(Title)
Before
19
Public examination of (a)
at the Court this day of
(a) Mr. an officer [or Ill' theca5emay be] of the above-named company
The above-named , being sworn and examined at the time and place above-mentioned, upon the several questions following being put and propounded to him, gave the several answers thereto respectively following each question, that is say -
A
These are the notes of the public examination referred to in the memorandum of public examination of taken before me this
day of 19
FORM 35 (rule 57)
Notes of Public Examination Where a Shorthand Writer is Not
Appointed
(Title)
Public examination of (a)
-- Before at the Court
Dated this day of 19
The above-named , being sworn and examined at the time and place above-mentioned, upon his oath saith as follows-
A
These are the notes of the public examination referred to at the memorandum of public examination of , taken before me this day of 19
(a) Mr. an officer [or as the case may be] of the above-named company
B.L.R.O. 111984
LAWS OF BRUNEI
444
CAP. 39 Companies
FORM 36 (rule 61) -
Report to the Court Where Person Examined Refuses to Answer to
Satisfaction of Registrar or Officer
(a) e.g., A.B., a per son ordered to attend for examination
(b) Here
state question
(Title)
At the examination of (a)
day of 19 [allowed by me to be] put to the said [
Q. (b)
held before me this day the following question was
].
(c) Witness
The (c) (or) The (c)
refused to answer the said question. answered the said question as follows
(d) Here in sert answers (if any)
(a) State place of ex amination
A. (d)
I thereupon named the day of 19 , at as the time and place for such [refusal to] answer to be
reported to the Hon. Mr Justice
Dated this day of 19
Registrar
[or as the case may be]
FORM 37 (sec. 207)
Order on Persons to Attend at Chambers to be Examined
(Title)
A.B. of &c., and E.F. of &c. are hereby severally ordered to attend at (a) on the day of , at of the clock in the noon, to be examined on the part of the Official Receiver [or the liquidator] for the purpose of proceedings directed by the Court to be taken in the above matter. [And the said A.B. is hereby required to bring with him and produce, at the time and place aforesaid, the documents mentioned in the schedule hereto, and
LAWS OF BRUNEI
Companies CAP. 39 445
all other books, papers, deeds, writings, and other documents in his custody or power in anywise relating to the above-named company].
Dated this day of 19
This order was made on the application of Messrs. C. and D., of
Solicitors for
The schedule above referred to
FORM 38 (rule 56)
Warrant Against Person Who Fails to Attend Examination
(Title)
To the bailiff of our said Court, and to each and all the police officers and to the Superintendent of Prisons.
WHEREAS by an order of this Court, made on the day
of 19 , (a) was ordered to attend before the (a) Name of
Court on a day and at a place to be named for the purpose of being i;:;:-
publicly examined. attend
AND WHEREAS by evidence taken upon oath, it has been made to appear to the satisfaction of the Court that the day of
, 19 , at - o'clock in the noon be-
fore the High Court sitting at was appointed as the time and place for holding the said examination, and that notice of the said order and of the said time and place so appointed was duly served upon the said (a)
(AND WHEREAS the said (a) did without good cause fail to attend on the said day of , 19 , for the purpose of being examined, according to the requirements of the said order of this Court made on the day of 19 directing him so to attend.)
(or, and that the said (a) has absconded (or, and that there is good reason to believe that the said (a) is about to abscond) with a view of avoiding examination under the Companies Act, 1956.
THESE ARE THEREFORE to require you the said bailiff and police officers to take the said (a) and to deliver him to the Superintendent of Prisons, and you the said Superintendent of Prisons to receive the said (a) and him safely keep in prison until such time as the Court may order.
Dated the day of '19
Judge
B.L.R.O. 111984
LAWS OF BRUNEI
446
CAP. 39 Companies
FORM 39 (rule 63) -
Disclaimer
(Title)
Pursuant to an order for the Court dated the
day of
(a) Insert de scription of the property disclaimed
(a) Insert de scription of the property disclaimed
'19
I, the liquidator of the above-named company, hereby disclaim all interest in the least dated the day of
19 , whereby the premises (a) were demised to at a rent of $ per annum for a term of
. Notice of this disclaimer has been given to
Dated this day of 19
Liquidator
FORM 40 (rule 63) Notice of Disclaimer of Lease
(Title)
Take notice that, pursuant to an order of the Court dated the day of , 19 , I, , the liquidator of
the above-named company, by writing under my hand bearing date the day of , 19 , disclaimed all interest in the
lease dated the day of , 19 , whereby the premises (a) were demised to at a rent of $
per annum for a term of
The above-mentioned disclaimer has been filed at the office of the
Registrar at and notice thereof filed in the Land Office
Dated this day of 19
Liquidator
To
(address)
LAWS OF BRUNEI
Companies CAP. 39 447
FORM 41 (rule 67)
Notice by Liquidator Requiring Payment of Money or Delivery of Books,
&c., to Liquidator
(Tille)
Take notice that I, the undersigned (a) have been appointed liquidator of the above-named company, and that you, the under-mentioned (b) , are required, within days after service hereof, to pay to me [or deliver, convey, surrender, or transfer to or into my hands] as liquidator of the said com- pany at my office, situate at (c) &c., the sum of $ being the amount of debt appearing to be due from you on
your account with the said company [or any sum or balance, books,
papers, estate or effects], [or specifically describe the property] now being in your hands, and to which the said company is entitled [or otherwise as the case may be].
Dated this day of 19
(Signed)
(a) Name of liquidator
(b) Name of person to whom notice is addressed
(c) Address of liquida tor's office
To (b) (Address)
FORM 42 (rule 68)
Liquidator
Provisional List of Contributories to be Made Out by Liquidator
(Title)
The following is a list of members of the company liable to be placed on the list of contributories of the said company, made out by me from the books and papers of the said company, together with their respective addresses and the number of shares [or extent of interest] to be attributed to each and the amount called up and the amount paid up in respect of such shares (or interest) so far as I have been able to make out or ascertain the same.
In the first part of the list, the persons who are contributories in their own right are distinguished.
In the second part of the said list, the persons who are contributor ies as being representatives of, or being liable to the debts of others, are distinguished.
B.L.R.O. 111984
LAWS OF BRUNEI
448
CAP. 39 Companies
FIRST PART-CONTRIBUTORIES IN THEIR OWN RIGHT -
-
SECOND PART-CONTRIBUTORIES AS BEING REPRESENTATIVES OF, OR LIABLE TO THE DEBTS OF, OTHERS
Serial
No" Name Address
Number
In what of shares Amount Amount
! Description character [or called paid included extent of up (a) up (a)
interest]
s $
(a) At date of commencement of winding up
FORM 43 (rule 69)
Notice to Contributories of Appointment to Settle List of Contributories
(Title)
(a) Insert place of appointment
Take notice that I, the liquidator of the above-named company, have appointed the day of 19 , at of the clock in the noon, at (a) , to
settle the list of the contributories of the above-named company, made out by me, pursuant to the Companies Act and the rules thereunder,
LAWS OF BRUNEI
Companies CAP. 39 449
and that you are included in such list. The character and the number of shares [or extent of interest] in and for which you are included and the amount called up and the amount paid up in respect of such shares (or interest) is stated below; and if no sufficient cause is shown by you to the contrary at the time and place aforesaid, the list will be settled, includ ing you therein.
Dated this day of 19
Liquidator
To Mr. A.B. [and to Mr. C.D.,
his solicitor].
No, on List | Name Address | Description | In what character included | Number of shares [or extent of interest] | Amount called up(a) | Amount paid up (a) | |
No, on List | • | Description | In what character included | Number of shares [or extent of interest] | Amount called up(a) | Amount paid up (a) | |
$ | $ |
(a) At date of commencement of winding up
FORM 44 (rule 69)
Affidavit of Postage of Notices of Appointment to Settle List of
Contributories
- (Title)
I, a (a) make oath and say as follows
1. That I did on the day of 19 , send to each contributory mentioned in the list of contributories made out by the [Official Receiver and] liquidator on the day of
19 , and now on the file of proceedings of the above-
named company, at the address appearing in such list, a notice of the time and place of the appointment to settle the list of contributories in the form hereunto annexed, marked "A", except that in the tabular
(a) State the description of the deponent
B.L.R.O.l/1984
LAWS OF BRUNEI
450 CAP. 39 Companies
form at the foot of such copies respectively I inserted the number, -
(b) "Number of shares" or "extent of in terest"
name, address, description, in what character included and (b)
the amount called up and the amount paid up in respect of the shares (or interest) of the person on whom such copy of the said notice was served.
2. That I sent the said notices by putting the same prepaid into the post office at before the hour of o'clock in the
noon on the said day
Sworn, &c.
FORM 45 (rule 70)
Certificate of Liquidator of Final Statement of the List of Contributories
(Title)
Pursuant to the Companies Act and to the rules made thereunder, I, the undersigned, being the liquidator of the above-named company, hereby certify that the result of the settlement of the list of contributor ies of the above-named company, so far as the said list has been settled, up to the date of this certificate, is as follows -
1. The several persons whose names are set forth in the second column of the First Schedule hereto have been included in the said list of
(a) "Number contributories as contributories of the said company in respect of the (a)
:;;_ set opposite the names of such contributories respectively in
terest" the said schedule.
I have, in the first part of the said schedule, distinguished such of the said several persons included in the said list as are contributories in their own right.
I have, in the second part of the said Schedule distinguished such of the said several persons included in the said list as are contributories as being representatives of or being liable to the debts of others.
2. The several persons whose names are set forth in the second column of the Second Schedule hereto, and were included in the pro visional list of contributories, have been excluded from the said list of contributories.
3. I have, in the sixth column of the first part of the First Schedule and in the seventh column of the second part of the First Schedule and in the same column of the Second Schedule, set forth opposite the name of each of the several persons respectively the date when such person was included in or excluded from the said list of contributories.
LAWS OF BRUNEI
Companies CAP. 39 451
4. I have in the seventh and eighth columns of the first part of the First Schedule hereto and in the eighth and ninth columns of the second part of the said schedule, set forth opposite the names of each of the said persons respectively the amount called up at the date of the commence ment of the winding up and the amount paid at such date in respect of their shares (or interest).
5. Before settling the said list, I was satisfied by the affidavit of
, clerk to , duly filed with the proceedings herein, that notice was duly sent by post to each of the persons mentioned in the said list, informing him that he was included in such list in the character and for the (a) stated therein and of the amount called up and the amount paid up in respect of such shares (or interest) and of the day appointed for finally settling the said list.
Dated this day of 19
In the matter of Berhad.
The FIRST SCHEDULE above referred to
FIRST PART-CONTRIBUTORIES IN THEIR OWN RIGHT
Number
tion (or
In the matter of Berhad.
SECOND PART-CONTRIBUTORIES AS BEING REPRE SENTATIVES OF OR LIABLE TO THE DEBTS OF OTHERS
Serial No, in List | Name | Address | De!ierip- tton | j Number In what of shares character (or included extent of | Date when I Amount t cluded called ''L te up | I Amount paid up | ||
Serial No, in List | Name | Address | De!ierip- tton | interest] | I Amount paid up | |||
$ | $ |
B.L.R.O.l/1984
LAWS OF BRUNEI
452 CAP. 39 Companies
In the matter of
The SECOND SCHEDULE above referred to
Berhad. -
-
FORM 46 (rule 71)
Notice to Contributory of Final Settlement of List of Contributories and that his Name is Included
(Title)
Take notice that I, , the liquidator of the above named company, have, by certificate, dated the day of
19 , under my hand, finally settled the list of contributor-
ies of the said company, and that you are included in such list. The character and the number of shares [or extent of interest] in and for which you are included and the amount called up and the amount paid up in respect of such shares (or interest) is stated below.
Any application by you to vary the said list of contributories or, that your name be excluded therefrom, must be made by you to the Court by summons within 21 days from the service on you of this notice, or the same will not be entertained.
The said list may be inspected by you at the chambers of the Reg
istrar at the Courts of Justice on any day between the hours of and
Dated this day of 19
(Signed)
Liquidator
ToMr }
[or to Mr
his solicitor]
LAWS OF BRUNEI
Companies CAP. 39 453
No. in
List
Number I
In what of shares Amount : Amount
Name Address Description character (or called paid included extent of up (a) up (a)
interest]
$ $
(a) At date of commencement of winding up
FORM 47 (rule 73)
Supplemental List of Contributories
(Title)
1. The following is a list of persons who, since making out the list of contributories herein, dated the day of
19 , I have ascertained are, or have been, holders of
shares in [or members of] the above-named company, and to the best of my judgement are contributories of the said company.
2. The said supplemental list contains the names of such persons together with their respective addresses and the number of shares [or extent of interest] and the amount called up at the commencement of the winding up and the amount paid at such date in respect of the shares (or interest) to be attributed to each.
3. In the first part of the said list such of the said persons as are contributories in their own right are distinguished.
4. In the second part of the said list such of the said persons as are contributories as being representatives of, or being liable to the debts of others, are distinguished.
[The supplemental list is to be made out in the same form as the original list.]
B.L.R.O. 11/984
LAWS OF BRUNEI
454 CAP. 39 Companies
FORM 48 (rule 71) -
Affidavit of Service of Notice to Contributory
(Title)
(a) State full I,
(a) of , make oath and say as
description of follows _
the deponent
1. Idid on the day of 19 , in the man-
(b) "Number of shares" or "extent of in terest"
ner hereinafter mentioned, serve a true copy of the notice now pro duced and shown to me and marked "A", upon each of the respective persons whose names, addresses, and descriptions appear in the second, third, and fourth columns of the First Schedule to the list of contributor ies of the said company made out by the [Official Receiver and] liquida tor of the company on the day of 19 , and now on the file of proceedings of the said company. In the tabular form at the foot of such copies respectively I inserted the number on list, name, address, description, in what character included, and (b) and the amount paid up and the amount called up at the date
of the commencement of the winding up in respect of the shares (or interest) of the person on whom such copy of the said notice was served, in the same words and figures as the same particulars are set forth in the said schedule.
2. I served the said respective copies of the said notice, by putting such copies respectively, duly addressed to such persons respectively, according to their respective names and addresses appearing in the said schedule, and my placing the same prepaid in the Post Office at before the hour of o'clock in the
noon of the said day of 19
Sworn, &c.
FORM 49 (rule 72)
Order on Application to Vary List of Contributories
(Title)
Upon the application of W.N., by summons dated the day of 19 , for an order that the list of contri-
butories of the company and the liquidator's certificate finally settling the same be varied by excluding the name of the applicant therefrom [or,
LAWS OF BRUNEI
Companies CAP. 39 455
as the case may be], and upon hearing, &c., and upon reading &c. It is ordered, that the list of contributories of the company and the liquida tor's certificate finally settling the same be varied by excluding the name of the said W.N. from the said list of contributories, or by including the name of the said W.N. as a contributory in the said list for shares, [or, as the case may be] [or the C.ourt does not think
fit to make any order on the said application, except that the said W.N. do pay to the liquidator of the said company his costs of this application, to be taxed in case the parties differ].
FORM 50 (rule 74 (1))
Notice to Each Member of Committee of Inspection of Meeting for
Sanction to proposed Call
(Title)
Take notice that a meeting of the committee of inspection of the above company will be held at on the (a) day of
19 , at o'clock in the noon, for the purpose of considering and obtaining the sanction of the committee to a call of $ per share proposed to be made by the liquidator
on the contributories.
Annexed hereto is a statement showing the necessity for the prop
osed call and the amount required.
Dated this day of 19 (Signed)
Liquidator
Statement
1. The amount due in respect of proofs admitted against the com pany, and the estimated amount of the costs, charges, and expenses of the winding up, form in the aggregate the sum of$ or there abouts.
2. The assets of the company are estimated to realise the sum of
$ . There are no other assets, except the amount due from certain of the contributories to the company, and in my opinion it will not be possible to realise in respect of the said amounts more than $
(a) To be a date not less than seven days from the date when
the notice
will in course
of post reach the person to whom it is addressed
AAI
B.L.R.O. 111984
LAWS OF BRUNEI
456
CAP. 39 Companies
3. The list of contributories has been duly settled, and persons have been settled on the list in respect of the total number of
shares.
4. For the purpose of satisfying the several debts and liabilities of the company, and of paying the costs, charges, and expenses, of the winding up, I estimate that a sum of $ will be required in addition to the amount of the company's assets hereinbefore men tioned.
5. In order to provide the said sum of$ it is necessary to make a call on the contributories, and having regard to the probabil ity that some of them will partly or wholly fail to pay the amount of the call, I estimate that for the purpose of realising the amount required it is necessary that a call of$ per share should be made.
(Annex tabular statement showing amounts of debts, costs, &c., and of assets)
FORM 51 (rule 74 (2))
Advertisement of Meeting of Committee of Inspection to Sanction
Proposed Call
(Title)
(a) Insert address
Notice is hereby given that the undersigned liquidator of the above named company proposes that a call should be made "on all the contri butories of the said company", or, as the case may be, of$ per share, and that he has summoned a meeting of the com-
mittee of inspection of the company, to be held at on the day of 19 , at o'clock in the noon, to obtain their sanction to the proposed call.
Each contributory may attend the meeting, and be heard or make any communication in writing to the liquidator or the members of the committee of inspection in reference to the intended call.
A statement showing the necessity of the proposed call and the purpose for which it is intended may be obtained on application to the liquidator at his office at (a).
Dated this day of 19
Liquidator
LAWS OF BRUNEI
Companies CAP. 39 457
FORM 52 (rule 74 (4))
Resolution of Committee of Inspection Sanctioning Call
(Title)
Resolved, that a call of $ per share be made by the liquidator on all the contributories of the company [or, as the case may be].
(Signed)
Members of the Committee of Inspection
Dated this day of 19
FORM 53 (rule 77)
Notice of Call Sanctioned by Committee of Inspection to be sent to
Contributory
(Title)
Take notice that the committee of inspection in the winding up of this company have sanctioned a call of per share on all the contributories of the company.
The amount due from you in respect of the call is the sum of
$ (a)
. This sum should be paid by you direct to me at my office on or before the day of
(a) Insert address
Dated this
ToMr
day of 19
Liquidator
NOTE.-If you do not pay the sum due from you by the date mentioned interest will be claimed on such sum at the rate of 6 per cent per annum from the said date until payment.
B.L.R.O. 111984
LAWS OF BRUNEI
458
Companies
FORM 54 (rule 75) -
Summons for Leave to Make a Call
(Title}
Let the several persons whose names and addresses are set forth in the second column of the schedule hereto, being contributories of the above-named company, as shown in the third column of the said sche- dule, attend at on the day of
, 19 , at o'clock in the noon, on the hearing of an application on the part of the [Official Receiver and] liquidator of the company for an order that he may be at liberty to make a call to the amount of per share on all the contributories [or as the case may be] of the said company.
Dated this day of
This summons was taken out by
for the [Official Receiver and] liquidator.
To
, 19
of Solicitors
NOTE.-If you do not attend either in person or by your solicitor, at the time and place above-mentioned, such order will be made and proceedings taken as the Court may think just and expedient.
SCHEDULE
Number on List | Name and address | In what character included |
LAWS OF BRUNEI
Companies CAP. 39 459
FORM 55 (rule 75)
Affidavit of Liquidator in Support of Proposal for Call
(Title)
I, of, &c., the liquidator of the above-named company, make oath and say as follows -
1. I have in the schedule now produced and shown to me, and marked with the letter "A", set forth a statement showing the amount due in respect of the debts proved and admitted against the said com pany, and the estimated amount of the costs, charges, and expenses of and incidental to the winding up the affairs thereof, and which several amounts form in the aggregate the sum of$ or thereabouts.
2. I have also in the said schedule set forth a statement of the assets in hand belonging to the said company, amounting to the sum of
$ and no more. There are no other assets belonging to the said company, except the amounts due from certain of the contributor ies of the said company, and, to the best of my information and belief, it will be impossible to realise in respect of the said amounts more than the sum of $ or thereabouts.
3. persons have been settled by me on the list of contributories of the said company in respect of the total number of
shares.
4. For the purpose of satisfying the several debts and liabilities of the said company and of paying the costs, charges, and expenses of and incidental to the winding up the affairs thereof, Ibelieve the sum of
$ will be required in addition to the amount of the assets of
the said company mentioned in the said Schedule A, and the said sum of
$
5. In order to provide the said sum of$ , it is necessary to make a call upon the several persons who have been settled on the list of contributories as before mentioned, and, having regard to the prob ability that some of such contributories will partly or wholly fail to pay the amount of such call, Ibelieve that, for the purpose of realising the amount required as before-mentioned, it is necessary that a call of
$ per share should be made.
Sworn, &c.
B. L.R.0. 111984
LAWS OF BRUNEI
460 CAP. 39 Companies
FORM 56 (rule 75) -
Advertisement of Application for Leave to Make a Call
(Title)
In the matter of
Notice is hereby given that the High Court has appointed the day of 19 at o'clock in the noon, at , to hear an
application for leave to make a call on all contributories of the said company [or as the case may be] and that the liquidator of the said
company proposes that such call shall be for$ per share. All persons interested are entitled to attend at such day, hour, and place, to offer objection to such call.
Dated this day of 19
FORM 57 (rule 75)
Order Giving Leave to Make a Call
The day of 19
(Title)
Liquidator
Upon the application of the [Official Receiver and] liquidator of the above-named company, the order to wind up the above-named com pany, the list of contributories of the said company and the liquidator's certificate of the final settlement of the same, and the affidavit of the said [Official Receiver and] liquidator, filed the day of
19 , and the exhibit marked "A" therein referred to, and
an affidavit of filed the day of 19
It is ordered that leave be given to the [Official Receiver and]
liquidator to make a call of $ per share on all the contribu-
(a)orasthe tories of the said company (a).
case may be
And it is ordered that each such contributory do on or before the
day of 19 , pay to the [Official Receiver and] liquidator of the company, the amount which will be due from him or her in respect of such call.
LAWS OF BRUNEI
Companies CAP. 39 461
FORM 58 (rule 76) Document Making a Call
(Title)
I, the [Official Receiver and] liquidator of the above-
named company, in pursuance of (a) made (or passed) this (a) An order day of 19 , hereby make a call of : f no f per share on all the contributories of the company, which the co!llmit·
sum is to be paid at any office (b) on the day of nofmspec·
19 (b)Insert address
Dated this day of 19
FORM 59 (rule 77)
Notice to be Served With the Order Sanctioning a Call
(Title)
The amount due from you, A.B., in respect of the call made pur
suant to leave given by the above [or within] order is the sum of
$ , which sum is to be paid by you to me as the liquidator of
the said company at my office, (a). (a)Insert
address
In default of payment interest at the rate of 6 per cent per annum
will be charged upon the amount unpaid from the day of until payment.
Dated this day of 19
ToMrA.B.
Liquidator
B.L.R.O. 111984
LAWS OF BRUNEI
462 CAP. 39 Companies
FORM 60 (rule 78) -
Affidavit in Support of Application for Order for Payment of Call
(Title)
I, of, &c., the liquidator of the above-named company, make oath and say as follows -
1. None of the contributories of the said company, whose names are set forth in the schedule hereto annexed, marked "A", have paid or caused to be paid the sums set opposite their respective names in the said schedule, which sums are the amounts now due from them respec- tively under the call of per share, duly made under the Com- panies Act, dated the day of 19
2. The respective amount or sums set opposite the names of such contributories respectively in such schedule are the true amounts due and owing by such contributories respectively in respect of the said call.
A
THE SCHEDULE ABOVE REFERRED TO
No. on List | Name | Address | I In what Description character included | Amount due | ||
$ | c. |
Sworn, &c.
NOTE.-In addition to the above affidavit, an affidavit of the service of the applica tion for the call will be required in cases in which the committee of inspection of the Court has authorised a call to be made.
LAWS OF BRUNEI
Companies CAP. 39 463
FORM 61 (rule 78)
Order for Payment of Call Due From a Contributory
The day of , 19
(Title)
Upon the application of the liquidator of the above-named com- pany, and upon reading an affidavit of filed the day of , 19 , and an affidavit of the liquidator
filed the day of , 19 , it is ordered that C.D., of, &c., [or E.F., of &c., the legal personal representative of L.M., late of, &c., deceased], one of the contributories of the said company [or, if against several contributories, the several persons named in the second column of the schedule to this order, being respectively contributories of the said company], do, on or before the day
19 , or within 4 days after service of this order, pay to A.B., the liquidator of the said company at his office, (a) , the sum of
$ [if against a legal personal representative add, out of the assets of the said L.M. deceased, in his hands as such legal personal representative as aforesaid, to be administered in due course of adminis tration, if the said E.F. has in his hands so much to be administered, or, if against several contributories, the several sums of money set opposite to the respective names in the sixth column of the said schedule hereto],
such sum (or sums] being the amount [or amounts] due from the said
C. D. [or L.M.], [or the said several persons respectively], in respect of the call of$ per share duly made, dated the day
of , 19
And it is ordered that the said several persons do within the like period and at the place aforesaid pay to the said A.B., as such liquidator as aforesaid, interest at the rate of 6 per cent per annum on the amounts specified in the sixth column of the said schedule from day of
19 to the date of payment.
And it is ordered that the said several persons do within the like period and at the place aforesaid pay to the said A.B., as such liquidator as aforesaid, the several sums set opposite their respective names in the seventh column of the said schedule, such sums being the proportion of the applicant's costs of the said application payable by such several persons respectively.
[Add appropriate paragraphs as to amounts payable by married women and legal personal representatives, if any].
(a) Insert address
B.L.R.O. 111984
LAWS OF BRUNEI
464 CAP. 39 Companies
THE SCHEDULE REFERRED TO IN THE FOREGOING ORDER -
-·
NOTE.-The copy for service of the above order must be indorsed as follows-
"If you, the undermentioned A.B., neglect to obey this order by the time mentioned
therein you will be liable to process of execution, for the purpose of compelling you to obey the same."
FORM 62 (rule 78)
Affidavit of Service of Order for Payment of Call
(Title)
I, F.B., of, &c., make oath and say as follows -
1. I did on the day of 19 , personally serve G. F., of , &c., with an order made in this matter by this Court, dated the day of , 19 , whereby it was ordered [set out the order] by delivering to and leaving with, the said G.F., at , a true copy of the said order, and at the same time producing and showing unto him, the said G.F., the said original order.
2. There was indorsed on the said copy when so served the follow ing words, that is to say, "If you, the undermentioned G. F., neglect to obey this order by the time mentioned therein, you will be liable to pro cess of execution for the purpose of compelling you to obey the same".
Sworn, &c.
LAWS OF BRUNEI
Companies
CAP. 39
465
(a) Fill in full name, address
and oo:upalion of
deponent. If proof
I(a)
of
FORM 63 (rules 79-84)
Proof of Debt. General Form
(Title)
, make
made hy creditor
strike out
clause• (b)
and (c). !(made
by clerk of credi· tor.trike out (c). If by clerk or agent of the com· pany•trike
Out (b).
(d) Insert "me and to C. D. and E.F.. my co· partners ln trade (ifany)", or.lfby clerk or agent in sen name. address, and de·
scription of prin
cipal.
NOTETHJS.
(e) State consid·
erationJas goods sold an delivered byme(andmy
said partner) to the company be· tween the dates of (or moneys adv anced by me in re spect of the undermentioned bill of exchange) or,(asthecase maybe)].
(/)"My said part· ners or any of them" or "the abovenamed cre ditor" [as the case maybe]. (g)"My",or "their", or "his" (as the case may be).
(h) (Here state the particulars of all securitles held,
and where the securities are on the property of the company
assesses the value of the same. and if any bill• or other negotiable secur· ities be held spe· cify them in the schedule].
oath and say:
(b) That I am in the employ of the under-mentioned creditor, and that I am duly authorised by to make this affidavit, and that it is within my own knowledge that the debt hereinafter deposed to was incurred and for the consideration stated, and that such debt, to the best of my knowledge and belief, still remains unpaid and unsatisfied.
(c) That I am duly authorised, under the seal of the company hereinafter named, to make the proof of debt on its behalf.
1. That the above-named company was, at the date of the order for winding up the name, viz., the day of
19 , and still is justly and truly indebted to (d)
in the sum of dollars for (e) as shown by the account endorsed hereon, or by the following account, viz.-for which sum or any part thereof I say that I have not nor hath (f) or any person by (g) order to my knowledge or belief for (g) use had or received any manner of satisfaction or security whatsoever, save and except the following (h)
Admitted to vote
for$
the day
of 19
Official Receiver
or Liquidator
Admitted to rank for dividend for
this day
Official Receiver
or Liquidator
B.L.R.O. 111984
LAWS OF BRUNEI
466
CAP. 39 Companies
Sworn at in Brunei,}
[Deponent's
this day of
Before me
19 .
Signature]
NOTE.-The proof cannot be admitted for voting at the first meeting unless it is properly completed and lodged with the Official Receiver before the time named in the notice convening the meeting.
Bills of Exchange or other negotiable securities must be produced before the proof can be admitted.
FORM 64 (rule 90) Proof of Debt of Workmen
(Title)
(a) Fill in full name, address, and occupation of
say:
I(a) of (b)
make an oath and
deponent
(b) On behalf of the work men and others em ployed by the above-named company
1. That the above-named company was on the day of
19 , and still is justly and truly indebted to the several persons whose names, addresses, and descriptions appear in the sche dule endorsed hereon in sums severally set against their names in the sixth column of such schedule for wages due to them respectively as workmen or others in the employ of the company in respect of services rendered by them respectively to the company during such periods as are set out against their respective names in the fifth column of such schedule, for which said sums, or any part thereof, I say that they have not, nor hath any of them had or received any manner of satisfaction or
security whatsoever.
Sworn at
in Brunei this
of 19
Before me
day } Deponent's Signature
LAWS OF BRUNEI
Companies CAP. 39 467
SCHEDULE referred to on the other side
6
Amount due
Signature of Deponent
FORM 65 (rule 94)
Notice of Rejection of Proof of Debt
(Title)
Take notice, that, as [Official Receiver and] liquidator of the above-named company, I have this day rejected your claim against the company (a) [to the extent of$ ] on the following grounds-
And further take notice that subject to the power of the Court to extend the time, no application to reverse or vary my decision in reject ing your proof will be entertained after the expiration of (b)
days from this date.
Dated this day of 19
Signature
Address
To [Official Receiver and) Liquidator
(a) If proof wholly re jected strike out words underlined
(b) 21 days or
7 days as the
case maybe
BLR.O. 111984
LAWS OF BRUNEI
468
CAP. 39 Companies
FORM 66 (rule 101) -
List of Proofs to be Filled Under Rule 101
(Title)
Ihereby certify that the following is a correct list of all proofs tendered to me in the above matter during the past month.
Dated this day of 19
Liquidator
Name of creditor | Proofs tendered | |||
Name of creditor | Amount of proofs | Whether admitted, rejected. or standing over for further eonsideration | If admitted. amount | |
$ c. I I | $ | c. | ||
$ c. I I |
FORM 67 (rule 142 (1))
Notice to Creditors of Intention to Declare Dividend
(Title)
(a) Insert here "first" orusecond" or "final" o; as the cas
A (a) dividend is intended to be declared in the above matteL You are mentioned in the statement of affairs, but you have not yet proved your debt.
maybe
If you do
19
not prove your debt by the
, you will be excluded from this dividend.
day of
Dated this day of 19
Liquidator
To [Address]
LAWS OF BRUNEI
Companies CAP. 39 469
FORM 68 (rule 142 (5))
Certified List of Proofs Under Rule 142 (5) Companies (Winding Up) Rules and Application for Issue of Cheques for Dividend on Companies Liquidation Account
Re No.
I hereby certify that the following list has been compared with the proofs filed, and that the names of the creditors and the amounts for which the proofs are admitted are correctly stated.
(Signature)
Dated this day of 19
I certify that by my books the sum of $ stands to the credit of the above company with the companies liquidation account at the bank and that the sum of $ is required to meet the undermentioned dividends, on proofs which have been duly made and admitted to rank for dividend upon the company, and I have to request that orders for payment may be issued to me.
The dividend is payable on the day of
19 , and notice of declaration thereof was forwarded to the Official Receiver for insertion in the Gazette, on the day of 19
Liquidator
Dated this day of 19
To the Official Receiver
I
}
Town on
Address to which cheques and money orders should be sent
Amount of dividend
I
which Post Amount
No. Full name Office money of Sums Sums of
order should Proof under S20
he drawn $20 and above
s c. $ c. s c.
B.L.R.O. Ill984
LAWS Of' BRUNEI
470 CAP. 39 Companies
FORM 69 (rule 142 (5)) -
Certified List of Proofs Filed Under Rule 142 (5) Companies (Winding
Up) Rules, Special Bank Case
(Title)
I hereby certify that the following list has been compared with the proofs filed, and that the names of the creditors and the amounts for which the proofs are admitted are correctly stated.
(Signature) Dated this day of 19
I hereby certify that a dividend of per cent has been declared, and that the creditors whose names are set forth below are entitled to the amounts set opposite their respective names.
Liquidator
Dated this day of 19
To the Official Receiver
Full name | Amount of proof | Amount of dividend | |||
$ | e. | $ | c. |
FORM 70 (rule 142 (1))
Notice to Persons Claiming to be Creditors of Intention to Declare Final
Dividend
(Title)
Take notice that a final dividend is intended to be declared in the above matter, and that if you do not establish your claim to the satisfac- tion of the Court on or before the day of 19
LAWS OF BRUNEI
Companies CAP. 39 471
or such later day as the Court may fix, your claim will be expunged, and
I shall proceed to make a final dividend without regard to such claim.
Dated this day of 19
Liquidator
To X.Y. [Address]
- FORM 71 (rule 142 (3))
Notice of Dividend
Dividend cheques are cancelled at the expiration of 6 months from date of issue and money orders at the expiration of 12 months from date of issue.
[Please bring this Dividend Notice with you]
(Title)
Dividend of per cent
[Address] [Date]
Notice is hereby given that a dividend of per cent has been declared in this matter, and that the same may be received
at my office, | as above, on | the | day of |
19 | , or on any subsequent | between, the | |
hours of | and |
Upon applying for payment this notice must be produced entire, together with any bills of exchange, promissory notes or other negoti able securities held by you. If you desire the dividend to be paid to some other person you can sign and lodge with the liquidator an authority in the prescribed Form 72. Otherwise if you do not attend personally you must fill up and sign the subjoined forms of receipt and authority to deliver, when a cheque or money order payable to your order will be delivered in accordance with the authority.
To
(Signed)
Liquidator
NOTE-The receipt or authority should, in the case of a firm, be signed in the firm's name, or in the case of a limited company by an officer of the company, so described.
B.L.R.O. lll984
LAWS OF BRUNEI
472 CAP. 39 Companies
RECEIPT
19
Received of in this matter the sum of dollars and cents being the amount payable to me/us in
respect of the dividend of per cent on my/our
claim against this company.
Payee's Signature
$
SIR,
AUTHORITY FOR DELIVERY
PLEASE deliver to
(Insert the name of the person who is to receive the cheque or money order, or the words "me/us by post", at "my/our risk", if you wish it sent to you in that way.)
the cheque or money order for the dividend payable to me/us in this matter.
Payee's Signature
To the [Official Receiver and] Liquidator
Date
FORM 72 (rule 142 (7))
Authority to Liquidator to Pay Dividends to Another Person
(Title)
To the [Official Receiver and] Liquidator
SIR,
I/We hereby authorise and request you to pay toM
of
(a specimen of whose signature is given below), all dividends as they are declared in the above-named matter, and which may become due and
LAWS OF BRUNEI
Companies CAP. 39 473
payable to me/us in respect of the proof of debt for the sum of
$ against the above-named company, made [by
Mr. ] on my/our behalf.
And I/we further request that the cheque or cheques drawn in respect of such dividends may be made payable to the order of the said M whose receipt shall be sufficient authority to you for the issue of such cheque or cheques in his name.
It is understood that this authority is to remain in force until re
voked by me/us in writing.
Signatures
Witness to the signature of
Witness to the signature
of
Date
Specimen of signature of person appointed as above
Witness to the signature of
Witness to the signature of person appointed as above
FORM 73 (rule 143)
Notice of Return to Contributories
Cheques are cancelled at the expiration of 6 months from date of issue, and money orders at the expiration of 12 months from month of issue.
[Please bring this notice with you]
(Title)
Return of$ per share
[Address] [Date]
Notice is hereby given that a return of per share has been declared in this matter, and that the same may be re ceived at my office, as above, on the day of
, 19 , or on any subsequent day, except Saturday, be- tween the hours of and
B.L.R.O. 111984
LAWS OF BRUNEI
474 CAP. 39 Companies
Upon applying for payment this notice must be produced entire, together with the share certificate. If you do not attend personally you must forward the share certificate and fill up and sign the subjoined forms of receipt and authority to deliver, when a cheque or money order payable to your order will be delivered in accordance with the authority.
(Signed)
Liquidator -
NOTE-The receipt should be signed by the contributory personally, or in the case of joint contributories by each, and in the case of a limited company by an officer of the company, so described.
RECEIPT
No.
19
Received of the and cents
in respect of the
in this matter the sum of dollars beiag the amount payable to return of per share
held by
in this company.
Contributory's signature
$
AUTHORITY FOR DELIVERY
SIR,
PLEASE deliver to
(Insert the name of the person who is to receive the cheque or money order, or the words "me/us by post", at "my/our risk", if you wish it sent to you in that way.)
the cheque or money order for the return payable to me/us in this matter.
Contributory's signature
To the [Official Receiver and] Liquidator
LAWS OF BRUNEI
Companies CAP. 39 475
FORM 74 (rule 143)
Schedule or List of Contributories Holding Paid-Up Shares to whom a
Return is to be Paid (a)
In the matter of No. of 19
!(! !Q '5 i b
t> "
," 5
'3 Ill
.s ":"; ,. l ;
.ll
J:>
$ ;:i
1J !:!·5
!;;
-51
., !I ]8. i .
_8.,
O,ll ! _8;:1 t'l
'! ·r:
iz a .,...,,..
· ....,
0-g :ll ,!, '<l o;;; E ·
e,:..::t eM ;;; s
·e:s .r; • !:! l i
Z!! z.e
:H ;2
{:. il &:: $G '""'!-!"o"
$ c. $ c. $ c. $ c. $ c. $ c.
I
(a) Where the articles provide that the amount divisible among the member,; or any class of the member,; shall be divisible in proportion to the amount paid up or which ought to have been paid up at the date of winding up, or contain any other provision which will necessitate further information before a return can be made, columns should be added showing the amount called up and the amount paid up at such date in respect of shares then held by such member,; or class of member,; or such other facts as may be requisite.
FORM 75 (rule 114) Notice of Meeting [General Form]
(Title)
Take notice that a meeting of creditors [or contributories] in the
above matter will | be held at | on the | day | of |
, 19 | , at | o'clock in the | noon. |
Agenda
(a) (a) [Here in
sert purpose
Dated this day of 19 for which meeting called]
(Signed) (b) (b)"Liquida- tor" or "Of ficial Receiv
Forms of general and special proxies are en,c;losed herewith. Proxies er"
to be used at the meeting must be lodged not later than o'clock on the day of , 19
B.L.R.O. 111984
LAWS OF BRUNEI
476
FORM 76 (rule 115)
(a) State the description of the deponent
(b) Insert here "gener al" or "ad journed generar·or
··first"" meet ing of credi tors [or con tributories as thecasemav be] ·
Affidavit of Postage of Notices of Meeting
(Title)
I, a (a) , make oath and say as follows -
1. That I did on the day of . 19 , send to each creditor mentioned in the company's statement of affairs [or to each contributory mentioned in the register of members of the company] a notice of the time and place of the (b) in the form hereunto annexed marked "A".
2. That the notices for creditors were addressed to the said credi tors respectively. according to their respective names and addresses appearing in the statement of affairs of the company or the last known addresses of such creditors.
3. That the notices for contributories were addressed to the con tributories respectively according to their respective names and reg istered or last known addresses appearing in the register of the com pany.
4. That I sent the said notices by putting the same prepaid into the post office at before the hour of o'clock in the
noon on the said day. Sworn, &c.
FORM 77 (rule 115)
(a) Each cre ditor men tioned in the statement of affairs. or each con tributory mentioned in
I, certify-
Certificate of Postage of Notices (General)
(Title)
a clerk in the office of the Official Receiver, hereby
the register of members of the company, or as the case
maybe
1.
to (a)
(b)
That I did on the day of , 19 , send
a notice of the time and place of the first meeting, or in the form hereunto annexed marked "A''.
(b) "A ener almeenng", or"ad journed
eneral meet mg", or as the case maybe
Paragraphs 2, 3 and 4 as in Form 76.
Dated this day of 19
Signature
LAWS OF BRUNEI
Companies CAP. 39 477
FORM 78 (rule 122)
Memorandum of Adjournment of Meeting
(Title)
Before
at
' 19 , at
on the o'clock.
day of
Memorandum-The (a) meeting of (b) in the above matter was held at the time and place above mentioned; but it appearing that (c) the meeting was adjourned until the day of , 19 , at o'clock in the
noon, then to be held at the same place.
Chairman
FORM 79 (rule 118)
Authority to Deputy to Act as Chairman of Meeting and Use Proxies
(Title)
I, the Official Receiver [or the liquidator] do hereby nominate Mr. of to be chairman of the meeting of creditors [or contributories] in the above matter, appointed to be held at on the day of , 19 , [and I de- pute him (a) to attend such meeting and use, on my behalf, any proxy or proxies held by me in this matter].
Dated this day of 19
Official Receiver, or Liquidator
FORM 80 (rule 132)
General Proxy
(Title)
(a) "First'' or as the case maybe
(b) Insert "creditors" or "contribu tories"as the case maybe
(c) Here state reason for ad journment
(a) Where authority given by the Official Re ceiver
Here insert "being a per son under my official con trol"
I/We, | of | , a creditor (or contributory) |
hereby appoint (1) | to be my/our general proxy to vote at the |
meeting of creditors (or contributories) to be held in the above matter
B.L.R.O. 111984
LAWS OF BRUNEI
-
(Signed) (2)
NOTES-(1) The person appointed general proxy may be the Of ficial Receiver, the liquidator, or such person as the creditor (or contribu tory) may approve, and the proxy form when signed must be lodged by the time and at the address named for that purpose in the notice convening the meeting at which it is to be used.
(2) If a firm, sign the firm's trading title, and add "by A. B., a partner in the said firm". If the appointer is a corporation, then the form of proxy must be under its common seal or under the hand of some officer duly authorised in that behalf, and the fact that the officer is so authorised must be stated thus -
For the Company.
J.S. (duly authorised under the seal of the company).
Certificate to be signed by person other than creditor (or contribu- tory) filling up the above proxy.
(a) Here state I, of , being a (a) ... hereby certify
rh::; :c! i that all insertions in the above proxy are in my own handwriting, and
the regufar have been made by me at the request of the above-named
?th f-1 and in his presence, before he attached his signature (or
tor or con- mark) thereto.
tributory or
the solicitor employed by him in conne xion with the matter or a
Dated this day of 19
(Signature)
commissioner to administer oaths in the Supreme
Court
In a voluntary winding up the liquidator or if there is no liquidator the chairman of a meeting may but the Official Receiver may not be appointed proxy. The proxy form will be altered accordingly.
FORM 81 (rule 132) Special Proxy
(Title)
1/We,
hereby appoint (1)
of , a creditor (or contributory), as my/our proxy at the meeting of credi-
LAWS OF BRUNEI
Companies CAP. 39 479
tors (or contributories) to be held on the day of
19 , or at any adjournment thereof, to vote (a)
solution numbered in the
Dated this day of 19
there- (a) Here in sert the word "for" or the word "against" as the case may require, and specify the
(Signed) (2)
NOTES-1. The person appointed proxy may be the Official Re ceiver, the liquidator, or such other person as the creditor (or contribu tory) may approve, and the proxy form when signed must be lodged by the time and at the address named for that purpose in the notice convening the meeting at which it is to be used. A creditor (or contributory) may give a special proxy to any person to vote at any specified meeting or adjourn ment thereof on all or any of the following matters -
(a) for or against the appointment or continuance, in office of any specified person as liquidator or as member of the committee of inspection;
(b) on all questions relating to any matter, other than those above referred to, arising at a specified meeting or adjournment thereof
particular re
solution
2. If a firm, sign the firm's trading title, and add "by A.B., a partner in the said firm". If the appointer is a corporation, then the form of proxy must be under its common seal or under the hand of some officer duly authorised in that behalf, and the fact that he is so authorised must be stated.
Certificate to be signed by person other than creditor or contributory filling up the above proxy.
I, of , being a (b) hereby certify (b) Here
that all insertions in the above proxy are in my own hand-writing, and
have been made by me at the request of the above-named ager in the
and in his presence before he attached his signature (or } :n;r
mark) thereto. the creditor
or contribu-
Dated this day of 19 tory or solici tor employed by him in
(Signature) connexion with the mat teror a com·
missioner to
In a voluntary winding up the liquidator or if there is no liquidator
the chairman of a meeting may but the Official Receiver may not be appointed proxy. The proxy form will be altered accordingly.
administer oaths in the Supreme Court
B.L.R.O. Jll984
LAWS OF BRUNEI
480
(a) Here in sert grounds of application
CAP. 39 Companies
FORM 82 (rule 157) -
Application to Official Receiver to Authorise a Special Bank Account
(Title)
We, the committee of inspection, being of optmon that Mr. of , the liquidator in the above matter, should
have a special bank account for the purpose of (a) hereby apply to the Official Receiver to authorise him to make his payments
into and out of the bank.
All cheques to be countersigned by committee of inspection, and by of
Dated this day of 19
, a member of the
--------) Committee of Inspection
FORM 83 (rule 157)
Order of Official Receiver for Special Bank Account
(Title)
You are hereby authorised to make your payments in the above matter into, and out of, the bank.
[Here insert any special terms.]
All cheques to be countersigned by committee of inspection, and by
, a member of the
Dated this To Liquidator
day of 19
Official Receiver
LAWS OF BRUNEI
Companies CAP. 39 481
FORM 84 (rule 160)
Certificate and Request by Committee of Inspection as to Investment of
Funds
(Title)
We, the committee of inspection in the above matter, hereby cer tify that in our opinion the cash balance standing to the credit of the above-named company is in excess of the amount which is required for the time being to answer demands in respect of such company's estate, and request that the Official Receiver will invest the sum of $ by placing the same upon fixed deposit for the space of
months with the -- Bank of -- (or as may be recom
mended) for the benefit of the said company.
Dated this day of 19
--------} Committee of Inspection
FORM 85 (rule 160)
Request by Committee of Inspection to the Official Receiver to Realise
Investment
(Title)
We, the committee of inspection in the above matter, hereby cer tify that a sum of $ , forming part of the assets of the above named company, has been invested by placing the same on fixed deposit with the--Bank of--(or as the case may be) and that the sum of$ is now required to answer demands in respect of the said
company. And we request that so much of the said investment as may be necessary for the purpose of answering such demands may be realised by the Official Receiver and placed to the credit of the said company.
Dated this day of 19
--------} Committee of Inspection
B.L.R.O. JIJ984
LAWS OF BRUNEI
482 CAP. 39 Companies
FORM 86 (rule 161) -
Certificate by Committee of Inspection as to Audit of Liquidator's
Accounts
(Title)
We, the undersigned, members of the committee of inspection in the winding up of the above-named company, hereby certify that we have examined the foregoing account with the vouchers, and that to the best of our knowledge and belief the said account contains a full, true fl.nd complete account of the liquidator's receipts and payments.
Dated this day of 19
--------) Committee of Inspection
FORM 87 (rule 162)
Statutory Declaration Verifying Liquidator's Account Under Section 196
(Title)
I, G.H., of , the liquidator of the above-named com- pany, do solemnly and sincerely declare -
That *the account hereunto annexed marked B contains a full and true account of my receipts and payments in the winding up of the above-
nor has any other person by my order or for my use, during such period received any moneys on account of the said company *other than and except the items mentioned and specified in the said account.
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declara tions Act, Cap. 12.
Declared at, &c. {
Liquidator
*Note--If no receipts or payments strike out the words in italics.
LAWS OF BRUNEI
Companies CAP. 39 483
FORM 88 (rule 163)
Liquidator's Trading Account Under Section 188
(Title)
G.H. the liquidator of the above-named company in account with the estate.
RECEIPTS PAYMENTS
Dr. Cr.
··--··
Date Date
i
Liquidator
(Date)
We have examined this account with the vouchers and find the same correct, and we are of opinion the expenditure has been proper.
Dated this day of 19
Committee of Inspection
[or member of the Committee of Inspection J
- FORM 89 (rule 163)
Statutory Declaration Verifying Liquidator's Trading Account Under
Section 188
(Title)
I, the liquidator of the above-named company, do solemnly and sincerely declare that the account hereto annexed is a full, true, and complete account of all money received and paid by me or by
B.L.R.O. 111984
LAWS OF BRUNEI
484
(a) Here state nature of em ployment
any person on my behalf in respect of the carrying on of the trade or business of the company, and that the sums paid by me as set out in such account have, as I believe, been necessarily expended in carrying on such trade or business.
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declara tions Act, Cap. 12.
Declared, &c.
Liquidator
FORM 90 (rule 169)
Request to Deliver Bill for Taxation
(Title)
I hereby request that you will, within days of this date, or such further time as the Court may allow, deliver to me for taxation by the proper officer your bill of costs [or charges] as (a) fail ing which, I shall, in pursuance of the Companies Act, and rules pro ceed to declare and distribute a dividend without regard to any claim which you may have against the assets of the company, and your claim against the assets of the company will be liable to be forfeited.
Dated this day of 19
Official Receiver
FORM 91 (rule 174)
Certificate of Taxation
(Title)
I hereby certifying that I have taxed the bill of costs [or charges] [or expenses] of Mr. C. D. [here state capacity in which employed or engaged] [where necessary add "pursuant to an order of the Court dated the day of 19 ,"], and have allowed the same at
LAWS OF BRUNEI
Companies CAP. 39 485
the sum of dollars
paid to the said C.D. by
Dated this
$
[where necessary add "which sum is to be as directed by the said order"].
day of 19
Registrar
FORM 92 (rules 181 and 182)
[Re
This is the Exhibit marked "B" re
ferred to in the affidavit of
sworn before me this
19
day of
Magistrate
Statement of Receipts and Payments and General Direction as to
Statements
(Name of company)
(1) Every statement must be on sheets 13 inches by 16 inches.
(2) Every statement must contain a detailed account of all the liquidator's realisations and disbursements in respect of the company. the statement of realisations should contain a record of all receipts derived from assets existing at the date of the winding-up order or resolution and subsequently realised, including balance in bank, book debts and calls collected, property sold, &c.; and the account of dis bursements should contain all payments for costs and charges, or to creditors, or contributories. Where property has been realised, the gross proceeds of sale must be entered under realisations, and the necessary payments incidental to sales must be entered as disbursements. These accounts should not contain payments into the companies liquidation account (except unclaimed dividends-see para. 5) or payments into or out of bank, or temporary investments by the liquidator, or the pro ceeds of such investments when realised, which should be shown separ ately -
(a) by means of the bank pass book;
Size of sheets
Form and eon tents of statement
B.L.R.O.l/1984
I..AWS OF BRUNEI
486
Trading account
Dividends, etc.
(b) by a separate detailed statement of moneys invested by the liquidator, and investments realised.
Interest allowed or charged by the bank, bank commission, &c. and profit or loss upon the realisation of temporary investments, should however, be inserted in the accounts of realisations or disbursements, as the case may be. Each receipt and payment must be entered in the account in such a manner as sufficiently to explain its nature. The re ceipts and payments must severally be added up at the foot of each sheet, and the totals carried forward from one account to another without any intermediate balance, so that the gross totals shall represent the total amounts received and paid by the liquidator respectively.
(3) When the liquidator carries on a business, a trading account must be forwarded as a distinct account, and the totals of receipts and payments on the trading account must alone be set out in the statement.
(4) When dividends or instalments of compositions are paid to creditors, or a return of surplus assets is made to contributories, the total amount of each dividend, or instalment of composition, or return to contributories, actually paid, must be entered in the statement of disbursements as one sum; and the liquidator must forward separate accounts showing in lists the amount of the claim of each creditor, and the amount of dividend or composition payable to each creditor, and of surplus assets payable to each contributory, distinguishing in each list the dividends or instalments of composition and shares or surplus assets actually paid and those remaining unclaimed. Each list must be on sheets 13 inches by 18 inches.
(5) When unclaimed dividends, instalments of compositions or returns of surplus assets are paid into the companies liquidation account, the total amount so paid in should be entered in the statement of disbursements as one sum.
(6) Credit should not be taken in the statement of disbursements for any amount in respect of liquidator's remuneration unless it has been duly allowed by resolution of the committee of inspection or of the creditors or of the company in general meeting, or by order of Court as the case may require.
Liquidator's Statement of Account
Pursuant to section 269 of the Companies Act
N arne of company
Nature of proceedings (whether would up }
by the Court, or under the supervision
of the Court, or voluntarily)
LAWS OF BRUNEI
Companies CAP. 39 487
Date of commencement of winding up, Date to which statement is brought down Name and address of liquidator
This statement is required in duplicate
Liquidator's Statement of Account pursuant to section 269 of the
Companies Act
REALISATIONS DISBURSEMENTS
Date
•
Of whom Nature of
received
Amount Dare
Of whom Nature of paid disburse
mcnts
Amount
$ c. $ C.
Brought Brought
forward ... forward ...
.
i
Carried Carried
forward ... forward ...
I
NOTE-No balance should be shown on this account. but onlv the total realisations .and disbursements. which
should be carried forward to the next account. -
Analysis of Balance
- Total realisations .................................................. .
Total disbursements
$ c.
Balance $
$ c.
The Balance is made up as follows -
1. Cash in hands of liquidator ...........................
BBl B.L.R.O. 111984
LAWS OF BRUNEI
488 CAP. 39 Companies
2. Total payments into Bank, including ba lance at date of commencement of wind- ing up (as per Bank Book) .................
Total withdrawals from Bank .......
$ c.
Balance at Bank ........................ _
3. Amount in companies liquidation account
$ c.
4. Amount invested by liquidator
Less amounts realised from same
Balance .......................................
Total balance as shown above ....... .... $
NOTE-Full details of investments should be given in a separate statement.
NOTE-The liquidator shall also state
(1)
The amount of t he
. Assets (after deducting amounts
\
. ebs"tlt'-
mated assets an d I1a 1 t-
charged to secured credt.tors and de-
. h d f h benture holders) ....... $
ties at t e ate o t e }secured credt. tors ....... $
co.mdm" encement of
t he L1' a b1'lt'tl.es
debenture holders ....... $
wm mg up
J unsecured ere
d'tors ....... $
(2) The total amount of the 1 . .
ca 1.ta1
at:.d:£u: :at t·h-e
Pmd up m cash .... ....... ............... $
"':.,: a .p
tha.n $
(3) The general description and estimated}
value of outstanding assets (if any)
(4) The causes which delay the termina-}
tion of the winding up
(5) The period within which the winding}
up may probably be completed
LAWS OF BRUNEI
Companies CAP. 39 489
FORM 93 (rules 181 and 182)
Affidavit Verifying Statement of Liquidator's Account Under Section 269
(Name of Company)
I, , of , the liquidator of the above-named company, make oath and say-
That *the account hereunto annexed marked" B", contains a full and true
accou!U of my receipts and payments in the winding up of the above-
named company, from the day of , 19 , to the day of 19 , inclusive, *and that I have not,
nor has any other person by my order or for my use during such period, received or paid any moneys on account of the said company, *other than and except the items mentioned and specified in the said account.
I further say that the particulars given in the annexed Form 92, marked "B", with respect to the proceedings in and position of the liquidation, are true to the best of my knowledge and belief.
Sworn at}
*NOTE-If no receipts or payments, strike out the words in italics.
The affidavit is not required in duplicate, but it must in every case be accompanied by a statement on Form 92 in duplicate.
FORM 94 (rules 181 and 185)
Liquidator's Trading Account Under Section 269
(Name of Company)
the liquidator of the above-named company in account with the estate.
This account is required in duplicate in addition to Form 92.
RECEIPTS PAYMENTS
Dr. Cr.
-
Insert here the name of the company. Insert here the name of the liquidator
Date Liquidator
B.L.R.O. 111984
LAWS OF BRUNEI
490 CAP. 39 Companies
FORM 95 (rules 181 and 185) -
List of Dividends or Composition
(Name of Company)
I, hereby certify that a dividend (or composition) of per cent was declared payable on and after the day of 19 , and the creditors whose names
are set forth below are entitled to the amounts set opposite their respec tive names, and have been paid such amounts except in the cases spe cified as unclaimed.
Dated this
To the Official Receiver
day of
Liquidator
19
Full name | Amount of proof | Amount of dividend for composition | ||||
Full name | Amount of proof | Paid | Unclaimed | |||
c. | c. | C. |
This List is required in duplicate
FORM 96 (rules 181 and 185)
List of Amounts Paid or Payable to Contributories
(Name of Company)
I, hereby certify that a return of surplus assets was de- clared payable, to contributories on and after the day of
19 , at the rate of per share, and that the
contributories whose names are set forth below are entitled to the
LAWS OF BRUNEI
Companies CAP. 39 491
amounts set opposite their respective names, and have been paid such amounts except in the cases specified as unclaimed.
Dated this day of 19
To the Official Receiver
Liquidator
-------
This List is required in duplicate
FORM 97 (rule 184)
Affidavit Verifying Account of Unclaimed and Undistributed Funds
(Title)
I, of make oath and say that the particulars entered in the statement hereunto annexed, marked "A", are correct, and truly set forth all money in my hands or under my control, repre senting unclaimed or undistributed assets of the above company, and that the amount due by me to the companies liquidation account in respect of unclaimed dividends and undistributed funds is $
Sworn, &c.
Signature
B.L.R.O.l/1984
LAWS OF BRUNEI
492 CAP. 39 Companies
FORM 98 (rule 189) -
Notice to Creditors and Contributories of Intention to Apply for Release
(Title)
Take notice that I, the undersigned liquidator of the above-named company, intend to apply to the Court for my release, and further take notice that any objection you may have to the granting of my release must be notified to the Court within 21 days of the date hereof.
A summary of my receipts and payments as liquidator is hereto annexed.
Dated this day of 19
Liquidator
To
Note.-Section 190(3) of the Companies Act, Cap. 39, enacts that "An order of the Court releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company, or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact."
FORM 99 (rule 189)
Application by Liquidator to the Court for Release
(Title)
I, the liquidator of the above-named company, do hereby report to this Honourable Court as follows -
1. That the whole of the property of the company has been real ised for the benefit of the creditors and contributories [and a dividend to the amount of $ per cent has been paid as shown by the statement hereunto annexed, and a return of per share has been made to the contributories of the company];
[or That so much of the property of the company as can, according to the joint opinion of myself and the committee of inspection, hereunto
LAWS OF BRUNEI
Companies CAP. 39 493
annexed, in writing under our hands, be realised without needlessly protracting the liquidation, has been realised, a shown by the statement hereunto annexed, and a dividend to the amount of $ per cent has been paid, together with a return of per share to the contributories of the company]; (a)
2. I have caused a report on my accounts to be prepared, and I request this Honourable Court to grant me a certificate of release on being satisfied therewith.
Dated this day of 19
Liquidator
(a) Add if necessary "That the rights of the contributor· ies between themselves have been ad justed"
-
B. L.R.0. 111984
LAWS OF BRUNEI
494
CAP. 39 Companies
FORM 100 (rule 189) -
Statement to Accompany Notice of Application for Release
(Title)
Statement showing position of company at date of application for release
Dr.
Cr.
Pay
ments
c.
By court fees (including stationery. printing and postages in respect of contnbutnric creditors, and dehtor and fee for audit) ., .
lawrostsofpetitinn ................ " Law costs of soHdtor to liquidator Other law costs .
Liquidator's remuneration, viz
To total receipts from date of wind ing-up order, t:h
(State particulars under the set·er al headings pec(fied in the statement of aJ!airs.)
Receipts per trading Account
Other receipts
Total
Less-
Payments to redeem securities . Costs of execution
per cent on $ assets realised ... percent on$
assets distributed in dividend
Shorthand writer's charges Special managcr'scharics Person appointed to assist
statement of affairs ........ . Auctioneer·s charges as taxed
Other taxed costs .............................. .. Costs of possession and maintenanee
estate ................................................ Costs of notices in Gazette and local papers ...
Incidental outlay'"'''"'"'"""""''''''"'''''
Total costs and charges
Creditors, viz
(a) State number of creditors
Payments per trading accoum
c.
(a) Preferential .................. (a) Unsecured dividend of$
percent .......................... The estimate of amount expecied to rank for ..................... . Amount returned to contributor
ies
Balance ...,.
Assets not yet realised, including calls, estimated to produce$
(Add here any special remarks the liquidator thinks desirable).
Creditors can obtain any further information by inquiry at the office of the liquidator.
Dated this day of 19
(Signature of Liquidator) (Address)
LAWS OF BRUNEI
Companies CAP. 39 495
FORM 101 (rule 201)
Register of Winding-Up Orders to be Kept in the Court
Numhcr of Winding-up order | Numhcr of Petition | Dntc of Petition | nate of Winding-up order | Dates of Puhlic Examinations (if any) | Li uid ator |
FORM 102 (rule 201)
Register of Petitions to be Kept in the Court
No. of Petition | Name of company | Address of registered (,fficc | Description of company | Date of Petition | ||
No. of Petition | Name of company | Address of registered (,fficc | Description of company | Date of Petition | Petitioner | Date of Winding-up order |
FORM 103 (rule 202)
Notices for Gazette
(1) NOTICE OF WINDING-UP ORDER
(rule 36 (1) (c))
Name of company
Number of matter
Address of registered office
Date of order
Date of presentation of petition*
(*Where it is known that a voluntary winding up preceded the presentation of the petition, the date of the resolution for voluntary winding up should also be given).
B.L.R.O. 111984
LAWS OF BRUNEI | ||
496 | CAP. 39 | Companies |
(2) NOTICE OF FIRST MEETING | ||
(rule 107) |
Name of company | Address of registered office | |
Number of matter | Creditors, Date | |
Hour Hour | Place Place | Contributories, Date |
(3) NOTICE OF DAY APPOINTED FOR PUBLIC EXAMINATION
(rule 55 (l))
Name of company Address of registered office
Number of matter Date fixed for examination
Name of persons to be examined Hour
Place
(4) NOTICE OF INTENDED DIVIDEND (rule 142 (1))
Name of company Address of registered office Number of matter Last day for receiving proofs Name of liquidator Address
LAWS OF BRUNEI
Companies CAP. 39 497
(5) NOTICE OF DIVIDEND (rule 142 (3))
Name of company
Number of matter
First and final or otherwise
Where payable
Address of registered office
Amount per cent
When payable
(6) NOTICE OF RETURN TO CONTRIBUTORIES
(rule 143)
Name of company
Number of matter
First and final or otherwise
Where payable
Address of registered office
Amount per share
When payable
(7) NOTICE OF APPOINTMENT OF LIQUIDATOR
(rule 45 (5))
Narne of company Number of matter Address
Address of registered office
Liquidators's name
Date of appointment
B.L.R.O. 111984
LAWS OF BRUNEi
498 CAP. 39
Companies
(8) NOTICE OF REMOVAL OF LIQUIDATOR (rule 45 (7))
Narne of company
Number of matter
Liquidator's address
Address of registered office
Liquidators's name
Date of removal
(9) NOTICE OF RELEASE OF LIQUIDATOR
(rule 189 (2))
Name of company Number of matter Liquidator's address
Address of registered office
Liquidators's name
Date of release
FORM 104 (rule 203)
Memorandum of Advertisement or Gazetting
(Title)
Name of paper | Date of issue Date of filing | Nature of order, &c. | ||
(Signed)
LAWS OF BRUNEI
Companies CAP. 39 499
FORM 105 (rule 183 (4) and section 270 (1)) Certificate of Receipt for Money Paid Into Companies Liquidation
Account
(Title)
This is to certify that Mr , liquidator of the above- named company has this day paid into the companies liquidation account through me the sum of $ representing unclaimed or undistributed assets of the above-named company.
Date this day of 19
Official Receiver
-
B.L.R.O. 111984