the creditor must pay to the liquidator an amount equal to the amount (if any)
received by the creditor as a result of the execution, attachment or
enforcement of the charge or the charging order, less an amount in respect of
the costs of the execution, attachment or enforcement of the charge or the
charging order, being an amount agreed between the creditor and the liquidator
or, if no agreement is reached, an amount equal to the taxed cost of that
execution, attachment or enforcement.
(2) Where the creditor has paid to the liquidator an amount in accordance with
subsection (1), the creditor may prove in the winding up for the
creditor's debt as an unsecured creditor as if the execution or attachment or
the enforcement of the charge or the charging order, as the case may be, had
not taken place.
(3) Subject to subsections (4) and (5), where a creditor of a company
receives:
- (a)
- notice in writing of an application to the Court for the
winding up of the company; or
- (b)
- notice in writing of the convening of a meeting of the company to consider
a resolution that the company be wound up voluntarily;
it is not competent for the creditor to take any action, or any further
action, as the case may be, to attach a debt due to the company or to enforce
a charge or a charging order against property of the company.
(4) Subsection (3) does not affect the right of a creditor to take action
or further action if:
- (a)
- in a case to which paragraph (3)(a)
appliesthe application has been withdrawn or dismissed; or
- (b)
- in a case to which paragraph (3)(b) appliesthe meeting of the
company has refused to pass the resolution.
(5) Subsection (3) does not prevent a creditor from performing a binding
contract for the sale of property entered into before the creditor received a
notice referred to in that subsection.
(6) Notwithstanding anything contained in this Division, a person who
purchases property in good faith:
- (a)
- under a sale by the sheriff in
consequence of the issue of execution against property of a company that,
after the sale, commences to be wound up; or
- (b)
- under a sale in consequence of the enforcement by a creditor of a charge
or a charging order against property of a company that, after the sale,
commences to be wound up;
acquires a good title to it as against the liquidator and the company.
(7) In this section:
"charge" means a charge created by a law upon registration of a judgment in a
registry.
"charging order" means a charging order made by a court in respect of a
judgment.