What is the procedure for presenting a winding-up petition?
To ensure that all legal requirements are met, it is usual to instruct a solicitor to deal with issuing a winding-up petition.
To present a winding-up petition you cannot just complete the petition and present it to the High Court. If there are legal proceedings, this can result in costs being awarded against either party. For example, costs could be awarded against a person presenting a winding-up petition if the Court believes that the winding-up procedure has been used in inappropriate circumstances where the debt is clearly defended.
Insolvency law requires that before the Court can hear the petition, affidavits must be lodged at Court verifying the winding-up petition. The petition must usually be served on the company at its registered office. An affidavit of service of the petition must be filed at Court and the petition must be advertised in the Belfast Gazette at least 7 days after the petition is served on the company and at least 7 days before the hearing. Further statements of truth may be required if, for example, you wish to withdraw the petition.
Here is more detail on the procedure:
- You must pay a deposit to the Department of Enterprise, Trade and Investment.
- You must complete a winding-up petition (Form 4.02) along with an affidavit (Form 4.03), verifying the matters giving rise to the petition.
- The petition is filed at Court, along with sufficient copies to be served on the company and any other parties involved, and the relevant court fee and deposit. The Court then fixes the place and date when the petition will be heard.
- A copy of the petition (sealed by the Court) must be served on the company at its registered office, or if this is not possible, at the company's last main place of business, or on a company director or company secretary. A copy must be sent to any voluntary liquidator, administrative receiver, administrator or supervisor of a voluntary arrangement appointed to the company. Immediately after service of the petition, the petitioner must file a affidavit at Court, verifying the service of the petition (Form 4.04/4.05).
- No earlier than 7 working days after the petition is served on the company, but at least 7 working days before the hearing, the petitioner must advertise notice of the petition (Form 4.06) in the Belfast Gazette. This enables other interested parties to inform the petitioner that they wish to attend the hearing, and whether they wish to support or oppose the petition.
- At least 5 days before the hearing, the petitioner must file at Court a certificate of compliance with the rules relating to service and advertisement (Form 4.07), along with a copy of the advertisement in the Gazette.
- If the company wishes to oppose the petition, it must file its affidavit in opposition at least 7 days before the hearing.
- On the day of the hearing, the petitioner must prepare a list, for the Court, of the people appearing at the hearing (Form 4.10).
- At the hearing, the petitioner, creditors, the company and its shareholders all have the right to be heard, and the Court may also choose to hear anyone with an interest in the company's property. The Court can then:
- dismiss the petition;
- adjourn the hearing;
- make a winding-up order;
- make an interim order; or
- make any other order it thinks fit.
All the forms are in the Insolvency Rules (Northern Ireland) 1991 and you may also be able to get them from legal stationers - see Yellow Pages.
