OpenLegislation

Section 163 Net sum payable on completion of default proceedings.I1C1

England, Wales and Scotland

F1(1)

The following provisions apply with respect to a net sum certified by F2a recognised body under its default rules to be payable by or to a defaulter.

(2)

If, in England and Wales, a bankruptcyF3, winding-up or administration order has been made, or a resolution for voluntary winding-up has been passed, the debt—

(a)

is provable in the bankruptcyF4, winding up or administration or, as the case may be, is payable to the relevant office-holder, and

(b)

shall be taken into account, where appropriate, under section 323 of the Insolvency Act M11986 (mutual dealings and set-off) or the corresponding provision applicable in the case of winding up F5or administration,

in the same way as a debt before the commencement of the bankruptcy, the date on which the body corporate goes into liquidation (within the meaning of section 247 of the Insolvency Act 1986)F6, or enters administration or, in the case of a partnership, the date of the winding-up order F7or the date on which the partnership enters administration.

(3)

If, in Scotland, an award of sequestration or a winding-up F8or administration order has been made, or a resolution for voluntary winding up has been passed, the debt—

(a)

may be claimed in the sequestrationF9, winding up or administration or, as the case may be, is payable to the relevant office-holder, and

(b)

shall be taken into account for the purposes of any rule of law relating to set-off applicable in sequestrationF10, winding up or administration,

in the same way as a debt due before the date of sequestration (within the meaning of section F1122(7) of the Bankruptcy (Scotland) Act 2016 ) or the commencement of the winding up (within the meaning of section 129 of the Insolvency Act 1986) F12or the date on which the body corporate enters administration.

F13(3A)

In subsections (2) and (3), a reference to the making of an administration order shall be taken to include a reference to the appointment of an administrator under—

(a)

paragraph 14 of Schedule B1 to the Insolvency Act 1986 (appointment by holder of qualifying floating charge); or

(b)

paragraph 22 of that Schedule (appointment by company or directors).

C2(4)

However, where (or to the extent that) a sum is taken into account by virtue of subsection (2)(b) or (3)(b) which arises from a contract entered into at a time when the creditor had notice—

(a)

that F14a bankruptcy application or a bankruptcy petition or, in Scotland, a petition for sequestration was pending, F15...

(b)

that F16a statement as to the affairs of the company had been made out and sent under section 99 of the Insolvency Act M21986 or that a winding-up petition was pending, F17or

F18(c)

that an application for an administration order was pending or that any person had given notice of intention to appoint an administrator,

the value of any profit to him arising from the sum being so taken into account (or being so taken into account to that extent) is recoverable from him by the relevant office-holder unless the court directs otherwise.

(5)

Subsection (4) does not apply in relation to a sum arising from a contract effected under the default rules of F19a recognised body.

(6)

Any sum recoverable by virtue of subsection (4) ranks for priority, in the event of the insolvency of the person from whom it is due, immediately before preferential or, in Scotland, preferred debts.

Annotations

Textual amendments

F1

S. 163(1) substituted (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 4(8) (with regs. 52-58)

F2

Words in s. 163(1) substituted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 3(10) (with regs. 7(4), 9(1))

F3

Words in s. 163(2) substituted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(a)(i) (with reg. 1(2)(3))

F4

Words in s. 163(2)(a) substituted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(a)(ii) (with reg. 1(2)(3))

F5

Words in s. 163(2)(b) added (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(a)(iii) (with reg. 1(2)(3))

F6

Words in s. 163(2) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(a)(iv) (with reg. 1(2)(3))

F7

Words in s. 163(2) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(a)(v) (with reg. 1(2)(3))

F8

Words in s. 163(3) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(b)(i) (with reg. 1(2)(3))

F9

Words in s. 163(3)(a) substituted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(b)(ii) (with reg. 1(2)(3))

F10

Words in s. 163(3)(b) substituted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(b)(ii) (with reg. 1(2)(3))

F11

Words in s. 163(3) substituted (30.11.2016) by The Bankruptcy (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016 (S.I. 2016/1034), art. 1, Sch. 1 para. 6(4)

F12

Words in s. 163(3) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(b)(iii) (with reg. 1(2)(3))

F13

S. 163(3A) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(c) (with reg. 1(2)(3))

F14

Words in s. 163(4)(a) inserted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 9(4)

F15

Word in s. 163(4)(a) omitted (15.6.2009) by virtue of The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(d) (with reg. 1(2)(3))

F16

Words in s. 163(4)(b) substituted (6.4.2017) by The Deregulation Act 2015 and Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Savings) Regulations 2017 (S.I. 2017/540), reg. 1, Sch. 1 para. 2(3) (with reg. 4)

F17

Word in s. 163(4)(b) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(d) (with reg. 1(2)(3))

F18

S. 163(4)(c) inserted (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(7)(d) (with reg. 1(2)(3))

F19

Words in s. 163(5) substituted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 3(10) (with regs. 7(4), 9(1))

Marginal citations

M1

1986 c. 45.

M2

1986 c. 45.

Modifications

C1

S. 163 amended by S.I. 1991/880, reg. 19(1)

S. 163 applied (with modifications) (11.12.1999) by S.I. 1999/2979, reg. 15(1)

C2

S. 163(4)-(6) excluded in part (11.12.1999) by S.I. 1999/2979, reg. 21(2)(a)

Commencement

I1

S. 163 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

Notes on Part VII

Modifications

C1

Pt. VII (ss. 154-191): functions of the Secretary of State transferred (7.6.1992) to the Treasury by S.I. 1992/1315, art. 2(1)(c) (with art. 6)

Pt. VII (ss. 154-191) applied (E.W.S.) (15.8.1995) by S.I. 1995/2049, reg.3; and applied (with modifications) (E.W.S.) (15.8.1995) by S.I. 1995/2049, regs.3,4,5,19, 26; and applied (with modifications) (15.7.1996) by S.I. 1996/1469, regs.3, 4, 5

C2

Pt. VII: power to apply conferred (1.12.2001) by 2000 c. 8, s. 301(1)(a); S.I. 2001/3538, art. 2(1)

Notes on Recognised bodies

Textual amendments

F1

S. 155 cross-heading substituted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 3(2) (with regs. 7(4), 9(1))