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Article 104 Application for winding upC1C2C3

Northern Ireland

Changes not yet applied. Later legislation changes this provision in ways not yet written into the text below:

(1)

Subject to the provisions of this Article, an application to the High Court for the winding up of a company shall be by petition presented either by the company, or the directors, or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories F1..., F2or by the chief clerk in exercise of the power conferred by section 35(4A) of the Criminal Justice Act (Northern Ireland) 1945 (enforcement of fines imposed on companies) or a clerk of petty sessions in exercise of the power conferred by Article 92A of the Magistrates' Courts (Northern Ireland) Order 1981 (enforcement of fines imposed on companies) or by all of any of those parties, together or separately.

(2 F3)

Except as mentioned in paragraph (3), a contributory is not entitled to present a winding‐up petition unless either—

(a)

the number of members is reduced below 2, or

(b)

the shares in respect of which he is a contributory, 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 commencement of the winding up, or have devolved on him through the death of a former holder.

(3)

A person who is liable under Article 63 to contribute to a company's assets in the event of its being wound up may petition on either of the grounds set out in Article 102(f) and (g), and paragraph (2) does not then apply; but unless the person is a contributory otherwise than under Article 63, he may not in his character as contributory petition on any other ground.

(4)

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(4AA)

A winding up petition may be presented by the F6Financial Conduct Authority in a case falling within Article 104C(1) or (2).

F7(4A)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)

A winding‐up petition may be presented by the Department—

(a)

if the ground of the petition is that in Article 102(b) or (c), or

F8(b)

in a case falling within Article 104AF9 or 104B.

F10(5A)

A winding-up petition may be presented by the Regulator of Community Interest Companies in a case falling within section 50 of the Companies (Audit, Investigations and Community Enterprise) Act 2004.

(6)

Where a company is being wound up voluntarily, a winding‐up petition may be presented by the official receiver as well as by any other person authorised in that behalf under the other provisions of this Article; but the High Court shall not make a winding‐up order on the petition unless it is satisfied that the voluntary winding up cannot be continued with due regard to the interests of the creditors or contributories.

Annotations

Textual amendments

F1

Words in art. 104(1) omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 169 (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)

F2

1994 NI 15

F3

mod. by SR 2004/307

F4

Art. 104(4) omitted (1.10.2009) by virtue of Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), arts. 2(1), 8, Sch. 1 para. 111(14) (with art. 10)

F5

Art. 104(4AA) inserted (18.8.2006) by The European Cooperative Society Regulations 2006 (S.I. 2006/2078), reg. 33(4)

F6

Words in art. 104(4AA) substituted (6.4.2018 immediately after 2016 c. 16 (N.I.), s. 8(2) comes into force) by The Financial Services Act 2012 (Mutual Societies) Order 2018 (S.I. 2018/323), art. 1, Sch. 4 para. 4(2) (with art. 3)

F7

Art. 104(4A) omitted (26.6.2020) by virtue of Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 7 para. 15 (with ss. 2(2), 5(2))

F8

1990 NI 10

F9

SR 2004/417

F10

Art. 104(5A) inserted (6.4.2007) by Companies Act 2006 (Commencement No. 2, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (S.I. 2007/1093), arts. 1(3), 6(2), Sch. 4 para. 56 (with art. 11(1))

Modifications

C1

Art. 104 restricted (retrospective to 27.4.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 2(2)-(4), (5) (with ss. 2(2), 5(2))

C2

Art. 104 restricted (retrospective to 27.4.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 1(1)-(3), (4) (with ss. 2(2), 5(2))

C3

Art. 104 restricted (retrospective to 27.4.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 3(2)-(4), (5) (with ss. 2(2), 5(2))

Notes on Part V

Textual amendments

F1

Words in Pt. V heading substituted (1.10.2009) by Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), arts. 2(1), 8, Sch. 1 para. 111(2) (with art. 10)

Modifications

C1

Pt. V modified (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), ss. 13, 49(1) (with ss. 2(2), 5(2))

C2

Pts. 1-5 modified by S.R. 2004/307 (as amended (1.10.2006) by Limited Liability Partnerships (Amendment) Regulations (Northern Ireland) 2006 (S.R. 2006/377), reg. 3, Sch. 2; (temp.) (27.4.2020 retrospective) by virtue of Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 8(1)(2), 14 (with ss. 2(2), 5(2)); (26.6.2020) by The Limited Liability Partnerships (Amendment etc.) Regulations 2020 (S.I. 2020/643), reg. 1(1), Sch. 2 (with reg. 3); (16.2.2021) by The Limited Liability Partnerships (Amendment etc.) Regulations 2021 (S.I. 2021/60), reg. 1(1), Sch. 2 (with reg. 4(2)))

C3

Pts. 1-5 applied (with modifications) (4.1.2024) by S.I. 2021/716, Sch. 1A para. 3 (as inserted by The Payment and Electronic Money Institution Insolvency (Amendment) Regulations 2023 (S.I. 2023/1399), reg. 1(2), Sch. 1)