I INSOLVENCY LAW, POLICY AND PROCEDURE
In the last edition of this publication we noted that there had been some significant movement in Manx insolvency law especially in the area of the mechanisms available for challenging a sealed winding-up order.2 At that time we noted that there was an increase in judicial criticism of the Isle of Man’s legislation and rules in respect of winding up. As such reforms do not appear to be high on the legislative agenda there has not been any change to either the legislative framework or the winding-up rules. The Isle of Man courts continue, however, to do an admirable job of ensuring that aging rules continue to function in the modern world. Accordingly, the statutory framework and substantive law remains the same in this edition as in the previous.
i Statutory framework and substantive law
Insolvency law on the Isle of Man is governed primarily by the following legislation:
- a the Fraudulent Assignments Act 1736;
- b the Preferential Payments Act 1908;
- c the Preferential Payments and Other Acts (Financial Adjustments) Act 1973;
- d the Companies Act 1931–2004; and
- e the Companies Act 2006.
The primary legislation governing insolvent companies can be found in Sections 155–276 of the Companies Act 1931. This is supported by the Companies (Winding-up) Rules 1934.
The regime in the Isle of Man, perhaps unsurprisingly given its proximity, shares many similarities with the regime in England and Wales and, indeed, with many common law jurisdictions. This is owing in part to the fact that the Isle of Man Companies Act 1931 was based on the Companies Act 1929 (an Act of Parliament). Nevertheless, there are certain idiosyncrasies and features unique to Isle of Man insolvency law and procedure that have developed over time. Added to the divergence in Manx and English and Welsh insolvency law and procedure as a result of the passage of time and interpretation is that the English and Welsh legislation of has been subject to amendment that the Manx legislation has not.
The Fraudulent Assignments Act 1736 states that ‘all fraudulent Assignments of Transffers of the Debtor’s Goods or Effects shall be void and of no Effect against his just Creditors, any Custome or Practice to the contrary notwithstanding’.
A transaction will be void under the 1736 Act if, and only if, it is entered into dishonestly (i.e., if the debtor enters into the transaction with the intention to defraud his or her creditors). The 1736 Act applies to present and ascertained future debts at the time of the transaction in question. It does not, however, apply to claims filed after the transaction.3 Further, assignment or transfer of debtors’ goods is only void against existing creditors; it is not illegal to protect property against future creditors. Accordingly, one may enter transactions with a view to and for the purpose of protecting property against potential future creditors that do not presently exist.4
In Donnell v. Siboney,5 Deemster Doyle, then Second Deemster of the Isle of Man, stated that: ‘To present a petition to wind up a company is a very serious step to take. It can result in the death of the company.’
To present a petition to wind up a company is therefore considered to be a serious step and not to be done lightly. It might therefore be argued that there should be some reluctance for the Isle of Man courts to take the step to wind up a company. It is, however, the case that courts are routinely required to make serious decisions on a variety of important issues and the fact that presentation of a winding-up petition might be considered a last resort will not prevent the court from winding up a company where there are good grounds for doing so.
Lehman Brothers Inc v. Navigator Gas Management Limited 6 states that:
It is well-settled law that if a creditor with standing makes application to have a company wound up, and if the court is satisfied that such company is unable to pay its debts, a winding-up order will follow unless there is some special reason to the contrary. Further, in such circumstances and being so satisfied, the court would assume that a winding-up order should be made. The burden rests with any objector to show special reasons why such an order should not be made.
It follows that if a company is considered to be unable to pay its debts the Isle of Man courts will not hesitate to wind it up unless that company or other objectors can show special reasons not to, and the burden is on them to do so.
The practicality is that if a winding-up petition is presented and a company is deemed unable to pay its debts the chances of its survival are minimal. There are certain mechanisms that allow schemes of arrangement or receivership, but if a company is in financial difficulty and finds itself unable to pay its debts as they fall due, and a creditor in receipt of an undisputed debt wishes to wind up the company, there is a very good chance that the creditor will succeed.
iii Insolvency procedures
There are a variety of options open in respect of an insolvent company on the Isle of Man:
- a it can be wound up either voluntarily by its creditors7 or by the court8 or subject to the supervision of the court;9
- b it can appoint a receiver by way of application to the court10 or a charge holder can appoint a receiver in accordance with the terms of the security document; and
- c a liquidator may make an application to the court to sanction a compromise or a scheme of arrangement.11
Winding-up proceedings by the court are discussed in Section I.iv, infra.
There is no provision for the appointment of an administrator in the Isle of Man, nor is there a position of administrative receiver under Isle of Man law. However, foreign administrators are recognised and are likely to be assisted by the Isle of Man courts if such a request is made. The court has12 sought the assistance of the English High Court under Section 426 of the Insolvency Act 1986 to place an Isle of Man company into administration under the laws of England and Wales.
The Manx legal position on the appointment of receivers is by and large the same as the pre-1986 position in England and Wales. There is no requirement that a receiver should have any qualification as long as he or she has reached full age, although practically it would be difficult to envisage a situation where a receiver would not be an experienced or appropriately qualified insolvency practitioner.
Unless the power to appoint a receiver has been granted by way of debenture or other appropriate agreement, it will be necessary to apply to the court for a receiver to be appointed. The court’s jurisdiction to appoint a receiver in the Isle of Man follows the common law position and will only be exercised to aid some legal or equitable right.13 The appointment must of course be of some advantage to the applicant and the property in question must have some value.
Appointment of a receiver by debenture or under a charge will be in accordance with the terms of the security document. Subject to any terms to the contract, the appointor may remove or replace the receiver at any point he or she chooses.
The jurisdiction of the Manx court to affect schemes of arrangement has been described as being ‘extremely wide’.14 A liquidator has power15 to apply to the court for the summoning of a meeting of the creditors and contributories for a vote to be held upon the scheme. If three-quarters in value of the creditors or members present and voting agree to the scheme of arrangement or compromise then, if this is sanctioned by the court, it is binding on the creditors, members and the liquidator.
The Manx courts have a history of proactively assisting overseas courts in respect of insolvency matters. The First Deemster (High Court judge) recently stated16 in a case involving US Chapter 11 proceedings of an Isle of Man company that ‘[t]he substantive insolvency proceedings should be confined to one jurisdiction with other courts worldwide, where necessary, acting in an ancillary capacity and recognising and assisting the jurisdiction of the primary court’. In this case the Manx court was content for the US court to be the primary court.
The island’s court system is modern and efficient and ancillary insolvency proceedings can be dealt with in a timely manner.
iv Starting proceedings
The language of the Companies Act 1931 is that insolvency proceedings before the court are commenced in the Isle of Man by way of a winding-up petition.17 The following parties may commence an application to wind up an Isle of Man company:18
- a the company;
- b the Isle of Man Treasury (in respect of public companies in limited circumstances);
- c any creditor or creditors (including contingent or prospective creditors);
- d any contributory or contributories; and
- e 10 or more policyholders in the case of an insurance company.
An application to wind up an Isle of Man company may be made by any or all of the above listed parties either together or separately.
Notwithstanding the foregoing, there are further limitations on when a contributory or a contingent or prospective creditor may bring a winding-up petition. In respect of contributories they are only entitled to present a winding-up petition if their shares were allotted at least six months before the commencement of the winding-up petition (or they have devolved to the contributory through the death of the original holder).19 Contributories may present a petition if the members of the company have been reduced below two.
Before an application for winding up by prospective or contingent creditors can be heard by the court they must establish a prima facie case for winding up and provide security for costs.20
In addition to the above, the Financial Supervision Commission may present a winding-up petition where it is expedient in the public interest that the company is wound up.21
The Isle of Man courts have discretion on hearing a winding-up petition to make such orders that they see fit and may dismiss, adjourn, make any interim order or any other order that they deem appropriate in the circumstances.22 The only limitation on the court’s discretion is that it may not refuse to make a winding-up order on the grounds that the only assets of the company have been mortgaged to or beyond their value or that the company has no assets. Indeed, those will ordinarily be reasons to wind up a company.
While the island’s insolvency legislation does not presently grant the court jurisdiction to review, rescind or vary a winding-up order,25 the Staff of Government Division has recently26 confirmed that the Manx courts have an inherent jurisdiction at common law to review, rescind or vary a winding-up order where such an order is necessary in the interests of justice. The manner in which the court will review a winding-up order, the area covered by the courts and how they will exercise their powers are presently uncertain. Presumably such a review will be on a similar basis to the powers granted under Rule 7.47 of the Insolvency Rules 1986 (an Act of Parliament), although it is not certain at this stage.
v Control of insolvency proceedings
Once the court has appointed a liquidator it is, for all intents and purposes, the liquidator that controls the insolvency proceedings subject to his or her compliance with statute and the Companies (Winding-Up Rules) 1934. The court is required to ‘take cognisance’27 of the liquidator’s conduct, and must enquire into any failings by the liquidator and take such action as it may think expedient. The court has power to require a liquidator to attend before it and be examined on oath in respect of the winding up.
The directors of the company must provide the liquidator with a statement of the company’s affairs within 14 days of the winding-up order or the appointment of a provisional liquidator. As soon as is practicable after receipt of the statement of affairs, the liquidator must submit a preliminary report to the court giving, inter alia, the reasons for the failure of the company and whether, in his or her opinion, further enquiry is desirable into the promotion, formation or failure of the company or the conduct of its business.
vi Special regimes
There are no special insolvency rules.
vii Cross-border issues
Because of the size of the Isle of Man, its location and its role as an international business centre, many Isle of Man company liquidations involve cross-border issues.
The approach of the Manx court has been to provide assistance to foreign courts and where necessary to seek the assistance of foreign courts, for example, by way of a letter of request. The Manx court has been prepared to extend the scope of Manx common law to assist overseas liquidators when there was no statutory power to provide such assistance.28
The principle of (modified) universalism is a principle recognised by Manx common law and provides that personal and corporate insolvency should be unitary and universal,29 a principle that was applied by the Privy Council in the case of Cambridge Gas.30
As the island’s insolvency case law develops there is a clear trend towards assisting overseas courts and claimants rather than putting hurdles in their way. The Manx court of appeal, known as the Staff of Government Division, in the case of Obertor v. Gaetano,31 interpreted the Judgments (Reciprocal Enforcement)(Isle of Man) Act 1968 (the 1968 Act) in a purposeful way so as to not require an English judgment creditor to have to register that judgment under the 1968 Act before being able to serve a statutory demand on the judgment.
In Interdevelco v. Waste2energy Group,32 the Manx court refused the application of a creditor to wind up an Isle of Man company as the company was already in Chapter 11 proceedings before the United States Bankruptcy Court for the District of Delaware. The court stated that in the circumstances there was no need for ‘additional substantive winding-up proceedings to take place in the Isle of Man’.
II INSOLVENCY METRICS
As Isle of Man companies are predominantly used for international trade or asset holding, it is the state of the global economy rather than the local economy that determines the number of insolvencies.
As a Crown Dependency, the political situation in the UK can also have an effect on the Isle of Man. It is unknown what, if any, effect the recent referendum on the UK’s membership of the European Union will have will have on the Manx or indeed the UK economy in the short, medium or long term and what, if any, effect it may have in respect of insolvencies.
III PLENARY AND ANCILLARY INSOLVENCY PROCEEDINGS
i Appointment of liquidators provisionally without notice pending the hearing of a claim to wind up a company
There have been two applications before the Manx courts for the appointment of provisional liquidators before the hearing of the winding-up claim that have been brought without notice. These applications have been made by the Isle of Man Financial Services Authority (FSA) (formerly the Financial Supervision Commission (FSC)).
In Financial Supervision Commission v. UK Secured Finance Fund PLC (10 June 2015) the FSC sought an urgent without notice application pursuant to Section 178 of the Companies Act 1931 for the appointment of joint liquidators provisionally in respect of UK Secured Finance Fund Plc.
The court heard that the company in question did not have a registered agent, in breach of Section 74(1) of the Companies Act 2006, and no longer had a manager. As a result of the company having no registered agent the Registrar of Companies had issued notice under Section 183 of the Companies Act 2006 indicating that unless cause is shown to the contrary, the company would be struck off the register. Further, joint controllers had been appointed to the company by the FSC who had reported that the company was cash-flow insolvent and had recommended to the FSC that the company be placed into liquidation as soon as possible. The FSC noted their belief that it was expedient in the public interest that the company was wound up.
In Isle of Man Financial Services Authority v. New Earth Recycling and Renewables (Infrastructure) PLC and others (9 June 2016) the FSA again sought appointment of joint liquidators provisionally on a without notice basis.
In that case the FSA sought appointment of provisional liquidators on the following basis: the companies in question had limited, if any, cash holdings and the directors had indicated that there were insufficient funds to operate on a daily basis or liquidate in an orderly manner; all payments had been frozen; it was not appropriate to allow the companies to continue trading without sufficient liquidity to operate on a daily basis; and the directors had consented to the applications being made and to the provisional appointments. The FSA also believed that the liquidators could preserve any assets that might still be capable of preservation and make necessary enquiries to obtain information on the affairs of the companies.
In both cases the application was granted, despite it being an exceptional step to take. Reference was also made in both cases to the decision of the court in Unicorn Worldwide Holdings Ltd and others v. P Court Ltd and others,33 which sets out the tests to be applied in the appointment of provisional liquidators without notice.
The Unicorn Worldwide Holdings case, following a number of English and Welsh authorities,34 states that there is a two-stage test that must be satisfied before such an appointment can be made.
The ‘first and critical question’ is whether the creditor was ‘likely to obtain a winding-up order on the hearing of their petition’. The second discretionary stage is that the court should consider whether, in the circumstances of the case, it is right that the provisional liquidator should be maintained in office pending the hearing of the claim. Unicorn Worldwide Holdings states the following:
Factors that the court should consider include whether there are real questions as to the integrity of the Company’s management and/or as to the quality of the Company’s accounting and record keeping function, whether there is any real risk of dissipation of the Company’s assets and/or any real need to take steps to preserve the same, whether there is any real risk that the company’s books and records will be destroyed and/or any real need for steps to be taken to ensure that they are properly preserved and maintained (which may be so where, for example, there is clear evidence of fraud or almost irrefutable evidence of chaos), whether there is any real need for steps to be taken to facilitate immediate inquiries into the conduct of the Company’s management and affairs and/or to investigate and consider possible claims against directors (e.g. for fraudulent or wrongful trading), whether or not the Company has a realistic prospect of obtaining a validation order under s.127 of the Act (because if it has no such prospect, it may well not be realistically able to trade in any event), and generally which course ‘seems likely to cause the least irremediable prejudice to one party or the other’.
Interestingly, while in both FSC v. UK Secured Finance Fund Plc and FSA v. New Earth Recycling and Renewables (Infrastructure) Plc a provisional liquidator was appointed, the court noted in the latter case that it granted the application with some degree of reluctance as it felt that the risk of dissipation of assets simply wasn’t there. However, the directors of the companies involved had essentially agreed to the FSA’s applications and as such the court was satisfied that the grounds were made out. Had the companies’ directors not been agreeable to the applications then it may well have been that the without notice application would not have been granted.
ii Disclosure and specific disclosure in winding-up claims
Requiring disclosure or making an order for specific disclosure in a winding-up claim has been noted as a highly unusual step to take; however, there have been a couple of cases in the period since the last edition of this work in which such orders have been sought. Those applications have not been successful, but the judgments make clear that the court does have the power to order such disclosure in a winding-up claim and while it might be unusual it will be prepared to make an order if there are good grounds for doing so.
Both cases confirmed that while such order in winding-up proceedings are unusual and exceptional, the court has the discretion to order disclosure and the tests and rules in respect of orders for specific disclosure are the same as they would be in any other application. ‘There is no jurisdiction to make an order for specific discovery unless (1) there was sufficient evidence that documents exist which have not been disclosed; (2) the documents related to matters at issue in the proceedings; and (3) there was sufficient evidence that the documents were in “the possession, custody or power” of the other person.’37
Even when those prerequisites for the jurisdiction exist the court still has discretion as to whether to order discovery. Again, the ordinary rules regarding the making of an order for specific disclosure apply. Documents and classes of documents must be defined precisely; discovery must be necessary to fairly dispose of the matter; and necessity, fairness and proportionality must be considered. The court will also not countenance ‘fishing expeditions’.
In most winding-up claims disclosure is likely to be unnecessary and will not be ordered on the grounds that it is not required to fairly dispose of the matter. Where winding up is sought on the grounds of inability to pay a debt, there will ordinarily be evidence of such insolvency or inability to pay the debt such that disclosure is not needed or if there is a genuine dispute over the alleged debt then in the ordinary course the winding-up claim would be dismissed. Where a court is being asked to wind up on the just and equitable ground then, again, in most cases the evidence will be clear on the face of it. If, for example, the claim is brought because of deadlock in the management of the company, such deadlock either exists or doesn’t and disclosure would not be required. There may, however, be circumstances outside of the normal course in which disclosure is necessary.
In Secure Nominees Limited v. Origo Partners and others,38 Deemster Doyle did not find helpful arguments put forward that because disclosure in winding-up matters were rare and exceptional that an order should not be made. While the learned Deemster did not make an order for disclosure in that case he made clear that the fact that such orders are rare and exceptional is simply a statement of fact and does not form part of the test for determining whether disclosure order should be made. The dispute must always be whether there is jurisdiction to make an order and if so whether the court should exercise its discretion to make one. It follows that if there are good grounds and reasons for making a disclosure order in the specific circumstances of a winding-up claim, highly unusual though that might be, then a disclosure order should be made.
iii Gittins and others v. Simpson (Staff of Government 27 June 2016)
This case concerned a dispute between creditors and contributories of the Spirit of Montpelier Limited (in liquidation) and its liquidator. The dispute concerned the liquidator’s sale of the company’s sole asset, a yacht known as The Spirit of Montpelier. The claimants had, despite requests, not been kept informed of the progress of the sale of the yacht and, having sought a general meeting under Section 185(2) of the Companies Act 1931, were informed by email on 7 July 2015 that the yacht was in the process of being sold. The yacht was sold on 15 July 2015. Mr Gittins had also offered to fund the refurbishment of the yacht by way of an interest-free loan to the company in order to increase the value of the yacht. The claimants sought an order either overturning the liquidator’s decision to sell the yacht or damages for losses resulting from the sale from the liquidator.
The claimants were unsuccessful in their claim and appealed to the Staff of Government Division where again, they were unsuccessful, deciding ultimately that the liquidator was justified in selling the yacht and not accepting the offer of Mr Gittins to fund refurbishment based on expert opinion he had taken. Importantly, the court concluded that, in the absence of authority, there was not a legitimate expectation in this case that a creditor would be treated in the same manner by the liquidator as any other creditor. The court’s reasoning was that a court appointed liquidator was, in the absence of further directions by the court, required to get on with the task of realising the company’s assets and was entitled to do so without consultation with any creditor. The judgment emphasises the significant powers and discretion a court-appointed liquidator has in fulfilling his or her role. The court did, however, note in its conclusion that in an appropriate case a creditor who was not treated in an even-handed manner by a liquidator could have a legitimate expectation and so have a legitimate complaint.
However, the Staff of Government Division were not entirely unsympathetic to the claimants’ position and did pass some comment on the actions of the liquidator in respect of matters relating to acceptance or otherwise of proofs of debt, consultation of creditors and failure of the liquidator to call a general meeting when requested.
The liquidator throughout the proceedings had neither accepted nor rejected the claimants’ proofs of debts but during the course of proceedings had contested the proofs of debt. The Staff of Government Division noted that such a state of affairs was unsatisfactory and the liquidator should have taken a decision either way as to the claimants’ status as creditors or not continued to contest their status as he did.
The Staff of Government Division also considered that on any fair reading of the email correspondence between the claimants and the liquidator, the imminent sale of the yacht was being concealed from the claimants so that it might be completed before the claimants could take action to prevent it taking place. The court noted that it was concerned that the liquidator did not appear to have dealt with all creditors on an even-handed basis, seeming to have perhaps preferred one of the creditors over the others.
Comment was also made that while the lower court had considered that there was some urgency to the sale of the yacht, the Staff of Government Division were not satisfied on the evidence before the court that this was necessarily the case. As such, when the liquidator took the decision not to hold a general meeting as he was required to do under Section 185(2) there could and should have been an urgent application to the court to confirm that in all the circumstances it was unnecessary to hold the meeting and for a further order that the sale of the yacht take place on the agreed terms. The court noted that given the legitimate concerns of the claimants that information was being concealed from them it could not begin to understand why such an application was not made. However, the Staff of Government Division considered that given that the yacht had been on the market for some years, the claimants and liquidator were well aware of their respective positions and the reality was that it was unlikely that the general meeting would have changed anything. It was further noted that as Section 185(2) does not expressly provide what consequences flow from its breach, the court was entitled to conclude that failure to call the general meeting did not entitle the claimants to relief in the proceedings. As such, while the court concluded that where a general meeting under Section 185(2) is requested, the liquidator should either call one or seek further application from the court, failure to do so did not in this case justify allowing the appeal.
iv Lime Petroleum Plc and others (26 July 2016)
This case concerned an application to wind up Lime Petroleum Plc on the grounds of inability to pay its debts and on the just and equitable ground on the basis that relations between shareholders had broken down and there was a deadlock in the management of the company.
The company was wound up but there was an argument as to the standing of the directors of the company to bring an application to wind it up. It was argued that the law and articles of association of the company gave no power to the directors to apply to wind up the company without shareholder approval. The court ruled that the directors did in fact have power in law to apply to wind up the company and instruct advocates to bring such applications.
The court’s reasoning was that under Section 164(1) of the Companies Act 1931, an application to the court for the winding up of a company may be made by the company, the company will ordinarily act through its directors and in this case the articles of the company specifically confirmed that the affairs of the company shall be managed by the directors. Under Manx law directors of an insolvent company are able to instruct advocates to present an application for the winding up of the company. The court also noted that there were sound policy reasons as to why directors should be entitled to instruct advocates to present winding-up applications on behalf of companies. These included that directors will usually be the first to be aware if a company becomes insolvent and shareholders may have an interest in wanting the company to continue trading.
v Kaupthing HF and Kaupthing Singer and Friedlander (Isle of Man) Limited (30 March 2016)
This case concerned matters in respect of the claimant, Kaupthing HF who was then in liquidation in Iceland and acting by its winding-up committee. The application was initially made to seek certain orders regarding recognition of Icelandic law in the insolvency; however, events overtook that application with the claimant had exited winding-up proceedings by composition agreement and instead an application was made for a long-term adjournment of the winding-up proceedings.
While the court noted its reluctance to make long-term adjournments, making reference to the judgment in Petrodel v. Le Breton39 that insolvency proceedings ‘should not remain outstanding for any longer than is reasonably necessary…’, in this case the party sought such an adjournment in order to preserve the date of the application to deal with the potential risk of a creditor appearing in the future and taking a point. The claimant argued that if such creditor appeared or further matters arose, especially given the jurisdictional issues in this claim, any fresh claim would encounter difficulties as it would be issued outside the period when the claimant was in liquidation.
The court was persuaded that, notwithstanding that long-term adjournments in winding-up proceedings are exceptional, there were very good reasons in this case for a long-term adjournment in order to preserve the issue date of the claim in order to save expense and deal with the risk that the issue date may become important in the future.
1 Miles Benham and James Peterson are directors of MannBenham Advocates Limited.
2 The Spirit of Montpelier Limited (In Liquidation) and others v. Lombard Manx Limited (18 June 2015).
3 In Re Heginbotham 1999-01 MLR 53.
4 Jefferies v. Henderson Walker 1522-1920 MLR 296. The case itself relates to an individual who was adjudged bankrupt, but the principle is equally applicable to companies.
5 10 December 2008, Chancery Division.
6 31 May 2005, Chancery Division.
7 Section 214 of the Companies Act 1931.
8 Ibid, Section 162.
9 Ibid, Section 243.
10 Section 42 of the High Court Act 1991.
11 Sections 152 and 184(1)(e) of the Companies Act 1931.
12 See Capita Asset Services (London) Limited v. Gulldale Limited below.
13 See Siskina v. Distos Compania  AC 210. For the case law on the persuasive nature of certain English or other foreign judgments in the Isle of Man, see Frankland v. R (PC) 1987–89 MLR 65.
14 Per Lord Hoffmann in Cambridge Gas Transport Corporation v. Official Committee of Unsecured Creditors (of Navigator Holdings PLC and others)  UKPC 26.
15 Sections 152 and 184(1)(e) of the Companies Act 1931.
16 Deemster Doyle in Interdevelco Limited v. Waste2energy Group Holdings plc; 10 October 2012.
17 The new court rules brought in by the Isle of Man Courts of Justice in 2009 now refer to ‘claims’ rather than ‘petitions’, so – more accurately – a winding-up petition should now be a winding-up claim, but for ease of reference and consistency this chapter will make reference to winding-up petitions.
18 Section 164(1) of the Companies Act 1931.
19 Ibid at Section 164(1)(a)(i) and (ii).
20 Ibid at Section 164(1)(c).
21 See Section III.iii, infra.
22 Ibid at Section 165(1).
23 Section 166 of the Companies Act 1931.
24 Petition of Colombo Investments & Others, 21 June 2005, Staff of Government (Appeal court).
25 Unlike in England, where Rule 7.47(1) of the Insolvency Rules 1986 provides that the court should have jurisdiction to review, rescind or vary a winding-up order.
26 The Spirit of Montpelier Limited (In Liquidation) and others v. Lombard Manx Limited, 18 June 2015, Staff of Government Division (Appeal Court). In this case the author Miles Benham appeared for the appellant and persuaded the court that there was a common law power for the lower court to review a winding-up order.
27 Section 189 of the Companies Act 1931.
28 In re Impex Services Worldwide Ltd 2003-05 MLR 115.
29 Interdevelco Limited v. Waste2energy Group Holdings plc, 10 October 2012, Deemster Doyle.
30 Cambridge Gas Transport Corporation v. Official Committee of Unsecured Creditors (of Navigator Holdings PLC and others)  UKPC 26.
31 Obertor Limited v. Gaetano Limited, 17 November 2010, Deemster Doyle.
32 See footnote 15.
33 2014 MLR 563.
34 Revenue and Customs Comrs v. Rochdale Drinks Distributors Ltd  1 BCLC 748, Re SED Essex Ltd  EWHC 1583 (Ch).
35 (10 December 2015).
36 (29 July 2016).
37 Gittins v. Simpson, paragraphs 11–14.
38 Paragraph 54.
39 (20 July 2012).