• SCHEDULE 5 SCHEDULE 5 PROOFS AND DISTRIBUTION

    • PART 1 PART 1 INTRODUCTION

      • 1. Application of Schedule

        This Schedule applies to Part 1 (Administration) and Part 3 (Winding-Up) of these Regulations.

    • PART 2 PART 2 INTERPRETATION

      • 2. Definitions and Interpretation

        (1) In this Schedule —
        (a) "debt", in relation to winding-up or administration, means (subject to sub-paragraph (2)) one or more of the following —
        (i) a debt or liability to which the Company is subject at the relevant date;
        (ii) a debt or liability to which the Company may become subject after the relevant date by reason of any obligation incurred before that date; and
        (iii) interest provable as mentioned in paragraph 28 (Interest) of Part 3 (Creditors' claims) of this Schedule;
        (b) "dividend" in its application to a members' voluntary winding-up includes distribution;
        (c) "Office-holder" means a person who, pursuant to these Regulations, holds an office as a liquidator, provisional liquidator or administrator;
        (d) "Insolvency Proceedings" means any winding-up proceedings or proceedings concerning provisional liquidation or administration under these Regulations as the context requires;
        (e) "provable debt" has the meaning given in paragraph 3 (Provable debts) of Part 3 (Creditors' claims) of this Schedule; and
        (f) "relevant date" means —
        (i) in the case of an administration which was not immediately preceded by a winding-up, the date on which the Company entered administration;
        (ii) in the case of an administration which was immediately preceded by a winding-up, the date on which the Company went into liquidation;
        (iii) in the case of a winding-up which was not immediately preceded by an administration, the date on which the Company went into liquidation; and
        (iv) in the case of a winding-up which was immediately preceded by an administration, the date on which the Company entered administration.
        (2) For the purposes of any provision of these Regulations about winding-up or administration, a liability in tort is a debt provable in a winding-up or administration, if either —
        (a) the cause of action has accrued at the relevant date; or
        (b) all the elements necessary to establish the cause of action exist at that date except for actionable damage.
        (3) For the purposes of references in any provisions of these Regulations about winding-up or administration, to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in any such provision to owing a debt are to be read accordingly.
        (4) Unless defined in this Schedule, or the context otherwise requires, a term defined in these Regulations has the same meaning in this Schedule. Any reference to these Regulations includes the Schedules thereto.

    • PART 3 PART 3 CREDITORS' CLAIMS

      • 3. Provable debts

        (1) All claims by creditors in Insolvency Proceedings, except as provided in this paragraph, are provable as debts against the Company, whether they are present or future, certain or contingent, ascertained or sounding only in damages.
        (2) In relation to administration and winding-up, claim(s) which by virtue of these Regulations or any other enactment of the Abu Dhabi Global Market are claim(s) the payment of which in an administration or a winding-up would be postponed shall not be provable except at a time when all other claims of creditors in the Insolvency Proceedings (other than the kind mentioned in this paragraph) have been paid in full with interest under paragraph 28 (Interest) of Part 3 (Creditors' claims) of this Schedule.
        (3) Nothing in this paragraph 3 prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise.

      • 4. Proving a debt

        (1) In Insolvency Proceedings (other than a members' voluntary winding-up), a person claiming to be a creditor of the Company and wishing to recover his debt in whole or in part must submit his claim in writing to the Office-holder unless —
        (a) the Court orders otherwise;
        (b) in a winding-up immediately preceded by an administration, the creditor has already proved in the administration; or
        (c) in an administration immediately preceded by a winding-up, the creditor has already proved in the winding-up.
        (2) A creditor who claims is referred to as "proving" for his debt and a document by which he seeks to establish his claim is his "proof".
        (3) In a members' voluntary winding-up the Office-holder may require proof to be delivered to the liquidator.

      • 5. Requirements for proof

        (1) A proof must —
        (a) be made out by, or under the direction of, the creditor and authenticated by him or a person authorised in that behalf; and
        (b) state the following matters —
        (i) the creditor's name and address;
        (ii) if the creditor is a Company, its registered number or equivalent;
        (iii) the total amount of the creditor's claim (including any applicable tax) as at the relevant date, less any payments made after that date in respect of the claim, any deduction under paragraph 23 (Discounts) of Part 3 (Creditors' claims) of this Schedule and any adjustment by way of set-off in accordance with paragraphs 24 (Administration: mutual dealings and set-off) and 25 (Winding-up: mutual dealings and set-off) of Part 3 (Creditors' claims) of this Schedule;
        (iv) whether or not the claim includes outstanding uncapitalised interest;
        (v) particulars of how and when the debt was incurred by the Company;
        (vi) particulars of any security held, the date on which it was given and the value which the creditor puts on it;
        (vii) details of any reservation of title in respect of goods to which the debt refers; and
        (viii) the name, address and authority of the person authorising the proof (if other than the creditor himself).
        (2) There shall be specified in the proof details of any documents by reference to which the debt can be substantiated; but (subject as follows) it is not essential that such document be attached to the proof or submitted with it.
        (3) The Office-holder may call for any document or other evidence to be produced to the Office-holder if the Office-holder considers it necessary for the purpose of substantiating the whole or any part of the claim made in the proof.

      • 6. Costs of proving

        (1) Unless the Court otherwise orders, each creditor bears the cost of proving for that creditor's own debt, including costs incurred in providing documents or evidence under paragraph 5(3) (Requirements for proof) of Part 3 (Creditors' claims) of this Schedule.
        (2) In an administration or winding-up, costs incurred by the Office-holder in estimating the value of a debt under paragraph 15 (Administration and winding-up: estimate of value of debt) of Part 3 (Creditors' claims) of this Schedule are payable out of the assets as an expense of the administration or winding-up.

      • 7. Allowing inspection of proofs

        The Office-holder must, so long as proofs delivered to the Office-holder are in the possession of the Office-holder, allow them to be inspected, at all reasonable times on any business day, by any of the following persons —

        (a) any creditor who has delivered a proof (unless the proof has been wholly rejected for purposes of dividend or otherwise);
        (b) any member or contributory of the Company; and
        (c) any person acting on behalf of any of the above.

      • 8. Transmission of proofs: replacement of Office-holder

        (1) If a new Office-holder (the "New Office-holder") is appointed in place of another (the "Former Office-holder"), the Former Office-holder must as soon as reasonably practicable after the appointment of the New Office-holder deliver to the New Office-holder all proofs which the Former Office-holder has received, together with an itemised list of them.
        (2) The New Office-holder must authenticate the list and return it to the Former Office-holder. From then on, all proofs must be sent to and retained by the New Office-holder.

      • 9. Admission and rejection of proofs for dividend

        (1) A proof may be admitted for dividend either for the whole amount claimed by the creditor or for part of that amount.
        (2) If the Office-holder rejects a proof in whole or in part, the Office-holder must prepare a statement of the Office-holder's reasons for doing so, and deliver or send it as soon as reasonably practicable to the creditor.

      • 10. Appeal against decision on proof

        (1) If a creditor is dissatisfied with the Office-holder's decision in relation to the creditor's proof (including any decision on the question of preference), the creditor may apply to the Court for the decision to be reversed or varied. The application must be made within 21 days of the creditor receiving the statement sent under paragraph 9(2) (Admission and rejection of proofs for dividend) of Part 3 (Creditors' claims) of this Schedule.
        (2) A member, a contributory or any other creditor may, if dissatisfied with the Office-holder's decision admitting or rejecting the whole or any part of a proof, make such an application within 21 days of becoming aware of the Office-holder's decision.
        (3) The Court will fix a venue for the application to be heard, notice of which must be sent by the applicant to the creditor who delivered the proof in question (if the applicant is not the creditor who delivered the proof in question) and the Office-holder.
        (4) The Office-holder must, on receipt of the notice, file with the Court the relevant proof, together (if appropriate) with a copy of the statement sent under paragraph 9(2) (Admission and rejection of proofs for dividend) of Part 3 (Creditors' claims) of this Schedule.
        (5) Where the application is made by a member or a contributory, the Court will not disallow the proof (in whole or in part) unless the member or the contributory shows that there is (or would be but for the amount claimed in the proof), or that it is likely that there will be (or would be but for the amount claimed in the proof), a surplus of assets to which the Company would be entitled.
        (6) After the application has been heard and determined, the proof must, unless it has been wholly disallowed, be returned by the Court to the Office-holder.
        (7) Office-holders are not personally liable for costs incurred by any person in respect of an application under this paragraph unless the Court otherwise orders.

      • 11. Withdrawal or variation of proof

        A creditor's proof may at any time, by agreement between the creditor and the Office-holder concerned, be withdrawn or varied as to the amount claimed.

      • 12. Exclusion of proof by the Court

        (1) The Court may exclude a proof or reduce the amount claimed —
        (a) on the Office-holder's application, where the Office-holder thinks that the proof has been improperly admitted, or ought to be reduced; or
        (b) on the application of a creditor, a member or a contributory, if the Office-holder declines to interfere in the matter.
        (2) Where the application is made by a member or a contributory, the Court will not exclude a proof or reduce the amount claimed (in whole or in part) unless the member or the contributory shows that there is (or would be but for the amount claimed in the proof), or that there will be (or would be but for the amount claimed in the proof), a surplus of assets to which the Company would be entitled.
        (3) Where application is made to the Court under sub-paragraph (1), the Court will fix a venue for the application to be heard, notice of which must be sent by the applicant —
        (a) in the case of an application by the Office-holder, to the creditor who made the proof; and
        (b) in the case of an application by a creditor, a member or a contributory, to the Office-holder and to the creditor who made the proof (if the applicant is not the creditor who made the proof).

      • 13. Administration and winding-up by the Court: unsecured debts of insolvent Company to rank equally

        (1) This paragraph applies in an administration and to a winding-up by the Court.
        (2) Unsecured debts (including all or any part of a secured debt which is treated as unsecured in accordance with this Schedule 5) other than Preferential Debts rank equally between themselves and, after the Preferential Debts, must be paid in full unless the assets are insufficient for meeting them, in which case they abate in equal proportions between themselves.

      • 14. Administration and winding-up: division of unsold assets

        (1) The Office-holder may —
        (a) in an administration, with permission of the creditors' committee, or, if there is no creditors' committee, by application to the Court; or
        (b) in a winding-up, without prejudice to provisions of these Regulations about disclaimer, with permission of the Liquidation Committee, or, if there is no Liquidation Committee, by application to the Court,
        divide in its existing form amongst the Company's creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold.
        (2) The Office-holder must —
        (a) in the receipts and payments account included in the final progress report under Chapter 10 (Ending Administration) of Part 1 (Administration) of these Regulations, state the estimated value of the property divided amongst the creditors of the Company during the period to which the report relates; and
        (b) as a note to the account, provide details of the basis of the valuation.

      • 15. Administration and winding-up: estimate of value of debt

        (1) The Office-holder must estimate the value of a debt which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value; and the Office-holder may revise an estimate previously made, if the Office-holder thinks fit by reference to a change of circumstances or to information becoming available to the Office-holder.
        (2) The Office-holder must inform the creditor as to the Office-holder's estimate and any revision of it.
        (3) Where the value of a debt is estimated under this paragraph 15 or by the Court, the amount provable in the case of that debt is that of the estimate for the time being.

      • 16. Negotiable instruments, etc.

        Unless otherwise allowed by an Office-holder, a proof in respect of money owed on a bill of exchange, promissory note, cheque or other negotiable instrument or security cannot be admitted unless there is produced the instrument or security itself or a copy of it certified by the creditor or the creditor's authorised representative to be a true copy.

      • 17. Secured creditors

        (1) If a secured creditor realises his security, he may prove for the balance of his debt, after deducting the amount realised.
        (2) If a secured creditor voluntarily surrenders his security for the general benefit of creditors, he may prove for his whole debt, as if it was unsecured.

      • 18. Secured creditor: value of security

        (1) A secured creditor may, with the permission of the Court or (except where sub-paragraph (2) applies) the agreement of the Office-holder, at any time alter the value which that creditor has put upon a security in a proof.
        (2) If a secured creditor —
        (a) is the applicant for an administration order or is the person who has appointed the administrator and has in the application or the notice of appointment put a value on a security; or
        (b) has voted in an administration or winding-up by the Court in relation to the unsecured balance of the secured creditor's debt,
        the secured creditor may alter the value of a security only with the permission of the Court.

      • 19. Secured creditor: surrender for non-disclosure

        (1) If a secured creditor omits to disclose a security in a proof, the secured creditor must surrender that security for the general benefit of creditors, unless the Court, on application by the secured creditor, relieves the secured creditor from the effect of this paragraph 19 on the ground that the omission was inadvertent or the result of honest mistake.
        (2) If the Court grants that relief, it may require or allow the creditor's proof to be amended, on such terms as may be just.

      • 20. Secured creditor: redemption by Office-holder

        (1) The Office-holder may at any time deliver notice to a creditor whose debt is secured that the Office-holder proposes, at the expiration of 28 days from the date of the notice, to redeem the security at the value put upon it in the creditor's proof.
        (2) The creditor then has 21 days (or such longer period as the Office-holder may allow) in which, if he so wishes, to exercise the right to alter the value of his security (with the permission of the Court, where paragraph 18(2) (Secured creditor: value of security) of Part 3 (Creditors' Claims) of this Schedule applies but otherwise without the need for either the agreement of the Office-holder or the permission of the Court).
        (3) If the creditor alters the value of his security, the Office-holder may only redeem at the new value.
        (4) If the Office-holder redeems the security, the cost of transferring it is payable out of the assets.
        (5) A secured creditor may at any time, by notice, call on the Office-holder to elect whether the Office-holder will or will not exercise the Office-holder's power to redeem the security at the value then placed on it; and the Office-holder then has three months in which to exercise the power or determine not to exercise it.

      • 21. Secured creditor: test of security's value

        (1) If the Office-holder is dissatisfied with the value which a secured creditor puts on his security (whether in the proof or by way of alteration of value in accordance with paragraph 18 (Secured creditor: value of security) of Part 3 (Creditors' Claims) of this Schedule, the Office-holder may require any property comprised in the security to be offered for sale.
        (2) The terms of sale will be as agreed, or as the Court may direct; and if the sale is by auction, the Office-holder on behalf of the Company and the creditor (on his own behalf) may appear and bid.
        (3) This paragraph 21 does not apply if the value of the security has been altered with the Court's permission.

      • 22. Realisation of security by creditor

        If a creditor who has valued a security subsequently realises the security (whether or not at the instance of the Office-holder) —

        (a) the net amount realised must be substituted for the value previously put by the creditor on the security; and
        (b) that amount must be treated in all respects as an amended valuation made by the creditor.

      • 23. Discounts

        There shall in every case be deducted from the claim all trade and other discounts (except any discount for immediate or early settlement) which would have been available but for the insolvency proceedings.

      • 24. Administration: mutual dealings and set-off

        (1) This paragraph 24 applies in an administration where the administrator proposes to make a distribution and has delivered a notice under paragraph 31 (Notice of intention to declare a dividend) of Part 4 (Distributions to creditors) of this Schedule.
        (2) An account must be taken as at the date of the notice referred to in sub-paragraph (1) of what is due from the Company and a creditor to each other in respect of their mutual dealings and the sums due from one party must be set off against the sums due from the other.
        (3) If there is a balance owed to the creditor then only that balance is provable in the administration.
        (4) If there is a balance owed to the Company under sub-paragraph (3) that must be paid to the administrator as part of the assets. However if all or part of the balance owed to the Company results from a contingent or prospective debt owed by the creditor then the balance (or that part of it which results from the contingent or prospective debt) must be paid in full (without reduction under paragraph 46 (Debt payable at future time) of Part 4 (Distributions to creditors) of this Schedule) if and when that debt becomes due and payable.
        (5) In this paragraph 24 —
        (a) "obligation" means an obligation however arising, whether by virtue of an agreement, rule of law or otherwise; and
        (b) "mutual dealings" means mutual credits, mutual debts or other mutual dealings between the Company and a creditor proving or claiming to prove for a debt in the administration but does not include any of the following —
        (i) a debt arising out of an obligation incurred at a time when the creditor had notice that —
        (aa) an application for an administration order was pending; or
        (bb) a person had delivered notice of intention to appoint an administrator;
        (ii) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into at a time when the creditor had notice that —
        (aa) an application for an administration order was pending; or
        (bb) a person had delivered notice of intention to appoint an administrator;
        (iii) a debt arising out of an obligation incurred after the Company entered administration;
        (iv) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into after the Company entered administration;
        (v) a debt arising out of an obligation where —
        (aa) at the time the obligation was incurred, the creditor had notice that a meeting of creditors had been summoned under Section 186 (Meetings of members and creditors) of these Regulations or a winding-up petition was pending; and
        (bb) a winding-up immediately preceded the administration;
        (vi) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into —
        (aa) at a time when the creditor had notice that a meeting of creditors had been summoned under Section 186 (Meetings of members and creditors) of these Regulations or that a winding-up petition was pending; and
        (bb) where a winding-up immediately preceded the administration;
        (vii) a debt arising out of an obligation incurred during a winding-up which immediately preceded the administration; or
        (viii) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into during a winding-up which immediately preceded the administration.
        (6) A sum must be treated as being due to or from the Company for the purposes of sub-paragraph (2) whether —
        (a) it is payable at present or in the future;
        (b) the obligation by virtue of which it is payable is certain or contingent; or
        (c) its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion.
        (7) For the purposes of this paragraph 24 —
        (a) paragraph 15 (Administration and winding-up: estimate of value of debt) of Part 3 (Creditors' claims) of this Schedule applies to an obligation which, by reason of its being subject to a contingency or for any other reason, does not bear a certain value;
        (b) paragraphs 26 (Debt in foreign currency), 27 (Payments of periodical nature) and 28 (Interest) of Part 3 (Creditors' claims) of this Schedule shall apply to sums due to the Company which —
        (i) are payable in a currency other than dollars;
        (ii) are of a periodical nature; or
        (iii) bear interest; and
        (c) paragraph 46 (Debt payable at future time) of Part 4 (Distributions to creditors) of this Schedule applies to a sum due to or from the Company which is payable in the future.

      • 25. Winding-up: mutual dealings and set-off

        (1) This paragraph 25 applies in a winding-up where, before the Company goes into liquidation, there have been mutual dealings between the Company and a creditor of the Company proving for a debt in the liquidation.
        (2) An account must be taken of what is due from the Company and the creditor to each other in respect of their mutual dealings and the sums due from the one must be set off against the sums due from the other.
        (3) If there is a balance owed to the creditor then only that balance is provable in the winding-up.
        (4) If there is a balance owed to the Company then that must be paid to the liquidator as part of the assets. However if all or part of the balance owed to the Company results from a contingent or prospective debt owed by the creditor then the balance (or that part of it which results from the contingent or prospective debt) must be paid in full (without reduction under paragraph 46 (Debt payable at future time) of Part 4 (Distributions to creditors) of this Schedule) if and when that debt becomes due and payable.
        (5) In this paragraph 25 —
        (a) "obligation" means an obligation however arising, whether by virtue of an agreement, rule of law or otherwise; and
        (b) "mutual dealings" means mutual credits, mutual debts or other mutual dealings between the Company and a creditor proving for a debt in the winding-up but does not include any of the following —
        (i) a debt arising out of an obligation incurred at a time when the creditor had notice that —
        (aa) a meeting of creditors had been summoned under Section 186 (Meetings of members and creditors) of these Regulations; or
        (bb) a petition for the winding-up of the Company was pending;
        (ii) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into at a time when the creditor had notice that —
        (aa) a meeting of creditors had been summoned under Section 186 (Meetings of members and creditors) of these Regulations; or
        (bb) a winding-up petition was pending;
        (iii) a debt arising out of an obligation where —
        (aa) at the time the obligation was incurred, the creditor had notice that an administration application was pending or a person had delivered notice of intention to appoint an administrator; and
        (bb) an administration immediately preceded the winding-up;
        (iv) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into —
        (aa) at a time when the creditor had notice that an administration application was pending or a person had delivered notice of intention to appoint an administrator; and
        (bb) an administration immediately preceded the winding-up;
        (v) a debt arising out of an obligation incurred during an administration which immediately preceded the winding-up;
        (vi) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into during an administration which immediately preceded the winding-up; or
        (vii) a debt which has been acquired by a creditor by assignment or otherwise, under an agreement between the creditor and another party where that agreement was entered into after the Company went into liquidation.
        (6) A sum must be treated as being due to or from the Company for the purposes of sub-paragraph (2) whether —
        (a) it is payable at present or in the future;
        (b) the obligation by virtue of which it is payable is certain or contingent; or
        (c) its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion.
        (7) For the purposes of this paragraph 25 —
        (a) paragraph 15 (Administration and winding-up: estimate of value of debt) of Part 3 (Creditors' claims) of this Schedule applies to an obligation which, by reason of its being subject to a contingency or for any other reason, does not bear a certain value;
        (b) paragraphs 26 (Debt in foreign currency), 27 (Payments of periodical nature) and 28 (Interest) of Part 3 (Creditors' claims) of this Schedule shall apply to sums due to the Company which —
        (i) are payable in a currency other than dollars;
        (ii) are of a periodical nature; or
        (iii) bear interest; and
        (c) paragraph 46 (Debt payable at future time) of Part 4 (Distributions to creditors) of this Schedule applies to a sum due to or from the Company which is payable in the future.

      • 26. Debt in foreign currency

        (1) For the purpose of proving for any debts incurred or payable in a currency other than dollars, the amount of those debts must be converted into dollars at the official exchange rate prevailing on the relevant date.
        (2) "The official exchange rate" for the purposes of sub-paragraph (1) is the middle market exchange rate of the Central Bank of the United Arab Emirates at the close of business, as published for the relevant date in question. In the absence of any such published rate, it is such rate as the Court determines.

      • 27. Payments of periodical nature

        (1) In the case of rent and other payments of a periodical nature, the creditor may prove for any amounts due and unpaid up to the relevant date.
        (2) Where at that date any payment was accruing due, the creditor may prove for so much as would have been due at that date, if accruing from day to day.

      • 28. Interest

        (1) Where a debt proved in Insolvency Proceedings bears interest, that interest is provable as part of the debt except in so far as it is payable in respect of any period after the relevant date.
        (2) In the following circumstances the creditor's claim may include interest on the debt for periods before the relevant date although not previously reserved or agreed.
        (3) If the debt is due by virtue of a written instrument and payable at a certain time, interest may be claimed for the period from that time to the relevant date.
        (4) If the debt is due otherwise, interest may only be claimed if, before the date on which the Company —
        (a) entered administration or, if the administration was immediately preceded by a winding-up, the date on which the Company went into liquidation; or
        (b) went into liquidation or, if the winding-up was immediately preceded by an administration, the date on which the Company entered administration,
        a demand for payment of the debt was made in writing by or on behalf of the creditor, and notice given that interest would be payable from the date of the demand to the date of the payment.
        (5) Interest under sub-paragraph (4) may only be claimed for the period from the date of the demand to the relevant date and for all the purposes of these Regulations must be charged at a rate not exceeding that mentioned in sub-paragraph (6).
        (6) The rate of interest to be claimed under sub-paragraphs (3) and (4) is the rate specified in the provisions of the Civil Procedure Rules relating to general rules about costs on the relevant date.
        (7) In an administration or winding-up —
        (a) any surplus remaining after payment of the debts proved must, before being applied for any purpose, be applied in paying interest on those debts in respect of the periods during which they have been outstanding since the relevant date;
        (b) all interest payable under sub-paragraph (7)(a) ranks equally whether or not the debts on which it is payable rank equally; and
        (c) the rate of interest payable under sub-paragraph (7)(a) is whichever is the greater of the rate specified under sub-paragraph (6) and the rate applicable to the debt apart from the administration or, if applicable, the winding-up.

    • PART 4 PART 4 DISTRIBUTIONS TO CREDITORS

      • 29. Application of Part to particular class of creditors

        (1) Subject as follows, this Part 4 applies where the Office-holder makes, or proposes to make, a distribution to any class of creditors other than secured creditors.
        (2) Where in an administration, a distribution is to a particular class of creditors, a reference in this Part 4 to creditors is a reference to that class of creditors only.
        (3) The paragraphs in this Part 4 apply in relation to any distribution made in the Insolvency Proceedings to preferential creditors, with such adaptations as are appropriate considering that such creditors are of a limited class.

      • 30. Intention to declare and distribute dividend

        (1) In an administration and in a winding-up, the Office-holder must deliver notice to the creditors of the Office-holder's intention to declare and distribute a dividend in accordance with paragraph 31 (Notice of intention to declare a dividend) of Part 4 (Distributions to creditors) of this Schedule.
        (2) In a winding-up, whenever the liquidator has sufficient funds in hand for the purpose the liquidator must, subject to the retention of such sums as may be necessary for the expenses of the winding-up, declare and distribute dividends among the creditors in respect of the debts which they have respectively proved.

      • 31. Notice of intention to declare a dividend

        (1) Where an Office-holder intends to declare a dividend, the Office-holder must deliver a notice of that fact to all creditors who have not proved for their debts (subject to sub-paragraph (4)(a)).
        (2) Before declaring a dividend the Office-holder must by a notice invite the creditors to prove for their debts (unless the Office-holder has previously done so by a notice which has been published in the Abu Dhabi Global Market).
        (3) The notice —
        (a) must be published in the Abu Dhabi Global Market; and
        (b) may be advertised in such other manner (if any) as the Office-holder thinks fit.
        (4) Where a dividend is to be declared for preferential creditors —
        (a) a notice under sub-paragraph (1) need only be delivered to creditors whose debts the Office-holder has reason to believe are preferential; and
        (b) a notice under sub-paragraph (1) need only be delivered if the Office-holder thinks fit.

      • 32. Content of notice

        A notice under sub-paragraph 31(1) or 31(3) (Notice of intention to declare a dividend) of Part 4 (Distributions to creditors) of this Schedule must, in addition to the standard contents —

        (a) specify a date ("the last date for proving") by which proofs may be delivered which must be —
        (i) the same date for all creditors; and
        (ii) not less than 21 days from the date of notice;
        (b) state that it is the intention of the Office-holder to make a distribution to creditors within the period of two months from the last date for proving;
        (c) specify whether the proposed dividend is interim or final;
        (d) specify the place to which proofs must be delivered;
        (e) in the case of an administration, state that it is the intention of the administrator to make a distribution to creditors within the period of two months from the last date for proving;
        (f) in the case of a winding-up, state that it is the intention of the Office-holder to declare a dividend within a period of two months from the last date for proving; and
        (g) in the case of a members' voluntary winding-up, where the distribution is to be a sole or final distribution, state that the dividend may be distributed without regard to the claim of any person in respect of a debt not proved.

      • 33. Postponement or cancellation of dividend

        If in the period of two months referred to in paragraph 32(b) (Content of notice) of Part 4 (Distributions to creditors) of this Schedule —

        (a) the Office-holder has rejected a proof in whole or in part and application is made to the Court for that decision to be reversed or varied; or
        (b) application is made to the Court for the Office-holder's decision on a proof to be reversed or varied, or for a proof to be excluded, or for a reduction of the amount claimed,

        the Office-holder may postpone or cancel the dividend.

      • 34. Admission or rejection of proofs

        (1) Unless the Office-holder has already dealt with them, the Office-holder must, within five (5) business days of the last date for proving —
        (a) admit or reject (in whole or in part) proofs delivered to the Office-holder; or
        (b) make such provision in relation to them as the Office-holder thinks fit.
        (2) The Office-holder is not obliged to deal with proofs delivered after the last date for proving, but the Office-holder may do so, if the Office-holder thinks fit.
        (3) In the declaration of a dividend no payment must be made more than once by virtue of the same debt.

      • 35. Declaration of dividend

        (1) If the Office-holder has not had cause to postpone or cancel the dividend in the two month period referred to in paragraph 32(e) or (f) (Content of notice) of Part 4 (Distributions to creditors) of this Schedule, the Office-holder must within that period proceed to declare the dividend to one or more classes of creditors of which the Office-holder gave notice.
        (2) Except with the permission of the Court, the Office-holder must not declare a dividend so long as there is pending any application to the Court to reverse or vary a decision of the Office-holder on a proof, or to exclude a proof or to reduce the amount claimed.
        (3) If the Court gives permission under sub-paragraph (2), the Office-holder must make such provision in relation to the proof as the Court directs.

      • 36. Notice of declaration of a dividend

        (1) Where the Office-holder declares a dividend the Office-holder must deliver notice of that fact to, subject to sub-paragraph (3), all creditors who have proved for their debts.
        (2) The notice must include the following particulars relating to the Insolvency Proceedings —
        (a) amounts raised from the sale of assets, indicating (so far as practicable) amounts raised by the sale of particular assets;
        (b) payments made by the Office-holder in carrying out the Office-holder's functions in relation to the Insolvency Proceedings;
        (c) provision (if any) made for unsettled claims, and funds (if any) retained for particular purposes;
        (d) the total amount to be distributed and the rate of dividend; and
        (e) whether, and if so when, any further dividend is expected to be declared.
        (3) Where the Office-holder declares a dividend for preferential creditors only, the notice pursuant to sub-paragraph (1) need only be delivered to those preferential creditors who have proved for their debts.

      • 37. Payments of dividends and related matters

        (1) The dividend may be distributed simultaneously with the notice declaring it.
        (2) Payment of dividend may be made by post, or the Office-holder may, with the agreement of the creditor, arrange for it to be paid to the creditor by any other means or in any form, or held for the creditor's collection.
        (3) Where a dividend is paid on a bill of exchange or other negotiable instrument, the amount of the dividend must be endorsed on the instrument, or on a certified copy of it, if required to be produced by the holder for that purpose.

      • 38. Notice of no dividend, or no further dividend

        If the Office-holder delivers notice to creditors that the Office-holder is unable to declare any dividend or (as the case may be) any further dividend, the notice must contain a statement to the effect either —

        (a) that no funds have been realised; or
        (b) that the funds realised have already been distributed or used or allocated for defraying the expenses of the Insolvency Proceedings.

      • 39. Where sole or final dividend

        (1) When the liquidator in a winding-up has realised all the Company's assets or so much of them as can, in the liquidator's opinion, be realised without needlessly prolonging the winding-up, the liquidator must deliver notice as provided for in this Part, either —
        (a) of the intention to declare a final dividend; or
        (b) that no dividend, or further dividend, will be declared.
        (2) The notice must contain all such particulars as are required by this Part and must require claims against the assets to be established by a date set out in the notice.
        (3) Where, in an administration or winding-up, it is intended that the distribution is to be a sole or final dividend, after the date specified as the last date for proving in the notice under paragraph 31 (Notice of intention to declare a dividend) of Part 4 (Distributions to creditors) of this Schedule, the Office-holder —
        (a) in a winding-up, must defray any outstanding expenses of the winding-up out of the assets;
        (b) in an administration, must —
        (i) pay any outstanding expenses of a winding-up (including any of the items mentioned in Section 226 (General rule as to priority of expenses) of these Regulations) or provisional winding-up that immediately preceded the administration;
        (ii) pay any items payable in accordance with the provisions of Section 143 (Vacation of office: charges and liabilities) of these Regulations;
        (iii) pay any amounts (including any debts or liabilities and the administrator's own remuneration and expenses) which would, if the administrator were to cease to be the administrator of the Company, be payable out of the property of which the administrator had custody or control in accordance with the provisions of Section 143 (Vacation of office: charges and liabilities) of these Regulations; and
        (c) in a members' voluntary winding-up may, and in every other case must, declare and distribute that dividend without regard to the claim of any person in respect of a debt not already proved.
        (4) The Court may, on the application of any person, postpone the date specified in the notice.

      • 40. Administration and winding-up: provisions as to dividends

        In an administration or winding-up, in the calculation and distribution of a dividend the Office-holder must make provision for —

        (a) any debts which appear to the Office-holder to be due to persons who, by reason of the distance of their place of residence, may not have had sufficient time to deliver their proofs;
        (b) any debts which are the subject of claims which have not yet been determined; and
        (c) disputed proofs and claims.

      • 41. Administration and winding-up: non-payment of dividend

        In an administration or winding-up, no action lies against the Office-holder for a dividend; but if the Office-holder refuses to pay a dividend the Court may, if it thinks just, order the Officeholder to pay it and also to pay, out of the Office-holder's own money —

        (a) interest on the dividend, at the official interest rate, from the time when it was withheld; and
        (b) the costs of the proceedings in which the order to pay is made.

      • 42. Supplementary provisions as to dividends

        (1) A creditor is not entitled to disturb the payment of any dividend or making of any distribution because —
        (a) the amount claimed in the creditor's proof is increased after payment of the dividend or making of the distribution;
        (b) in an administration or creditors' voluntary winding-up or compulsory winding-up the creditor did not prove for a debt before the declaration of the dividend; or
        (c) in a members' voluntary winding-up, the creditor did not prove for a debt before the last date for proving or increases the claim in proof after that date.
        (2) However the creditor is entitled to be paid or receive, out of any money for the time being available for the payment of any further dividend or making of any further distribution, any dividend or distribution which he has failed to receive.
        (3) Any dividend or dividends payable under this paragraph must be paid or distribution made before that money is applied to the payment of any further dividend or making of any further distribution.
        (4) If, after a creditor's proof has been admitted, the proof is withdrawn or excluded, or the amount of it is reduced, the creditor is liable to repay to the Office-holder, for the credit of the Insolvency Proceedings, any amount overpaid by way of dividend.

      • 43. Secured creditors

        (1) The following applies where a creditor alters the value of a security after a dividend has been declared.
        (2) If the alteration reduces the creditor's unsecured claim ranking for dividend, the creditor must as soon as reasonably practicable repay to the Office-holder, for the credit of the administration or the insolvent estate, any amount received by the creditor as dividend in excess of that to which the creditor would be entitled, having regard to the alteration of the value of the security.
        (3) If the alteration increases the creditor's unsecured claim, the creditor is entitled to receive from the Office-holder, out of any money for the time being available for the payment of a further dividend, before any such further dividend is paid, any dividend or dividends which the creditor has failed to receive, having regard to the alteration of the value of the security.
        (4) However, the creditor is not entitled to disturb any dividend declared (whether or not distributed) before the date of the alteration.

      • 44. Disqualification from dividend

        If a creditor contravenes any provision of these Regulations relating to the valuation of securities, the Court may, on the application of the Office-holder, order that the creditor be wholly or partly disqualified from participation in any dividend.

      • 45. Assignment of right to dividend

        (1) If a person entitled to a dividend ("the entitled person") delivers notice to the Office-holder that the entitled person wishes the dividend to be paid to another person, or that the entitled person has assigned the entitlement to another person, the Office-holder must pay the dividend to that other person accordingly.
        (2) A notice delivered under this paragraph must specify the name and address of the person to whom payment is to be made.

      • 46. Debt payable at future time

        (1) Where a creditor has proved for a debt of which payment is not due at the date of the declaration of dividend, the creditor is entitled to dividend equally with other creditors, but subject as follows.
        (2) For the purpose of dividend (and no other purpose) the amount of the creditor's admitted proof (or, if a distribution has previously been made to the creditor, the amount remaining outstanding in respect of the creditor's admitted proof) must be reduced by applying the following formula —

        x/1.05n

        where —

        "X" is the value of the admitted proof; and

        "n" is the period beginning with the relevant date and ending with the date on which the payment of the creditor's debt would otherwise be due, expressed in years (part of a year being expressed as a decimal fraction of a year).

      • 47. Power to exclude creditors not proving in time

        The Court may fix a time or times within which creditors are to prove their debts or claims or else to be excluded from the benefit of any distribution made before those debts are proved provided that the Court is satisfied that all necessary steps have been taken to bring the Insolvency Proceedings to the attention of creditors.