Insolvency Act · 2022 Revised Edition · Part · Judicial Management
39. Power to deal with charged property etc.
Official textFrom Attorney General's Chambers, unchanged
The judicial manager of a company may dispose of or otherwise exercise his powers in relation to any property of the company which is subject to a security to which this subsection applies as if the property were not subject to the security.
company
“company” means a company incorporated or registered under the Companies Act;
Where, on application by the judicial manager of a company, the
Court is satisfied that the disposal (with or without other assets) —
Court
“Court”, in relation to a company, means a court having jurisdiction to wind up the company;
of any property of the company subject to a security to which this subsection applies; or
of any goods under a hire-purchase agreement, chattels leasing agreement or retention of title agreement, would be likely to promote one or more of the purposes specified in the judicial management order, the Court may by order authorise the judicial manager to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase
Insolvency agreement, chattels leasing agreement or retention of title agreement were vested in the company.
Subsection (1) applies to any security which, as created, was a floating charge and subsection (2) applies to any other security.
security
“security” means any mortgage, charge, lien or other security interests;
Where any property is disposed of under subsection (1), the holder of the security shall have the same priority in respect of any property of the company directly or indirectly representing the property disposed of as he would have had in respect of the property subject to the security.
property
“property”, in relation to a company, includes money, goods, things in action and every description of property, whether real or personal, and whether in Brunei Darussalam or elsewhere, and also obligations and every description of interest whether present or future or vested or contingent arising out of, or incidental to, property.
It shall be a condition of an order made under subsection (2) that the net proceeds of the disposal shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement, chattels leasing agreement or retention of title agreement and where the net proceeds of the disposal are less than the sums secured by the security or payable under any of those agreements, the holder of the security or the owner of the goods, as the case may be, may prove on a winding up for any balance due to him.
hire-purchase agreement
“hire-purchase agreement” has the meaning assigned to it in the Hire-Purchase Order, 2006;
Where a condition imposed in pursuance of subsection (5) relates to two or more securities, that condition shall require the net proceeds of the disposal to be applied towards discharging the sums secured by those securities in the order of their priorities.
A copy of an order made under subsection (2) shall, within 14 days after the making of the order, be sent by the judicial manager to the Registrar.
The judicial manager shall give 7 days’ notice of his application to the Court to dispose of property subject to a security under subsection (2) to the holder of the security or to the owner of the goods which are subject to the hire-purchase agreement, chattels leasing agreement or retention of title agreement and the holder or the owner, as the case may be, may oppose the disposal of the property.
A judicial manager who, without reasonable excuse, fails to comply with subsection (7), is guilty of an offence and liable on conviction to a fine not exceeding $5,000, and, in the case of a continuing offence, with a further fine not exceeding $250 for every day or part thereof during which the offence continues after conviction.
Insolvency 54
insolvency
“insolvency”, in relation to a company, includes the approval of a voluntary arrangement or the appointment of a judicial manager;
Nothing in this section shall be regarded as prejudicing an application to the Court under section 49.
Terms defined in this Act
chattels leasing agreement
Defined · s 3“chattels leasing agreement” means an agreement for the bailment of goods which is capable of subsisting for more than 3 months;
company
Defined · s 3“company” means a company incorporated or registered under the Companies Act;
Court
Defined · s 3“Court”, in relation to a company, means a court having jurisdiction to wind up the company;
floating charge
Defined · s 3“floating charge” means a charge which, as created, was a floating charge, and includes a floating charge within the Companies Act;
hire-purchase agreement
Defined · s 3“hire-purchase agreement” has the meaning assigned to it in the Hire-Purchase Order, 2006;
insolvency
Defined · s 3“insolvency”, in relation to a company, includes the approval of a voluntary arrangement or the appointment of a judicial manager;
property
Defined · s 3“property”, in relation to a company, includes money, goods, things in action and every description of property, whether real or personal, and whether in Brunei Darussalam or elsewhere, and also obligations and every description of interest whether present or future or vested or contingent arising out of, or incidental to, property.
retention of title agreement
Defined · s 3“retention of title agreement” means an agreement for the sale of goods to a company, being an agreement — (a) which does not constitute a charge on the goods; but (b) under which, if the seller is not paid and the company is wound up, the seller will have priority over all other creditors of the company as respects the goods or any property representing the goods;
security
Defined · s 3“security” means any mortgage, charge, lien or other security interests;
Part
Winding Up of Companies Registered Under Companies Act
Chapter I
Chapter II
Chapter III
Chapter IV
Chapter V
Chapter VI
Chapter VII
Chapter VIII
Chapter IX
Chapter X
Part