September 1997

45.190 Modifications to the Act

Where a petition to wind up the partnership as an unregistered company is presented by a member, and concurrent petitions are presented against all members in their capacity as such, the Insolvency Act is modified under article 10 of the Insolvent Partnerships Order so that the following provisions of the Act apply:

1. ss117, 124, 125, 221, 264, 265, 271 and 272 as modified by Sch 6, and
2. ss220 (as modified by Sch 4) 225 and 227 to 229 in part V.

45.191 Jurisdiction

Under article 10 the High Court has jurisdiction to wind up any insolvent partnership which has (or had) a principal place of business in England and Wales. Similarly, a county court has jurisdiction where the principal place of business is (or was) within its insolvency district. This is subject to the same exceptions relating to timing of business and to businesses in Scotland or Northern Ireland as detailed at paragraph 45.154 above.

Notes: [ss117(M) and265(M), art 10,Sch 6(1)]

The court has jurisdiction to make a bankruptcy order against an individual member or to wind up a corporate member if it has jurisdiction in respect of the partnership.

45.192 Grounds for and presentation of petition

A petition under article 10 may only be presented by a member where the partnership is unable to pay its debts and -

1. petitions are presented at the same time by that member for insolvency orders against every member (including himself or itself); and
2. the petition against each member contains a statement that the member is willing to have an insolvency order made against him.

However, where the court is satisfied on application by a member that presentation of all the petitions as required is impracticable eg because of problems of service, then it may direct that petitions be presented against the partnership and whichever members are specified by the court. Petitions are all to be presented to the same court and, unless the court otherwise directs, on the same day and (except for a petition against an individual member) should be advertised.

Notes: [s124(M),s264(M),s272(M), art 10,Sch 6(2)]

45.193 - contents of the petition

Each petition shall contain details of the other petitions being presented in relation to the partnership.

Notes: s124 (5) M

45.194 - timing of the hearing

The hearing of the petition against the partnership must be in advance of the hearing of the other petitions.

Notes: s124(6) M

45.195 - progress report

On the day of the hearing the petitioner is required to complete and hand to the court a progress report giving details of the current position of the various petitions being presented.

Notes: s124(7) M

45.196 - attendance at the hearing

Any person against whom a related winding up or bankruptcy petition has been presented is entitled to be present and heard at the hearing to wind up the partnership.

Notes: s124(8) M

45.197 - withdrawal of the petition

Withdrawal provisions are similar to those detailed at paragraph 45.176.

Notes: s124(9) Ms124(10) M

45.198 Powers of Court at hearing

Subject to paragraph 45.199, on hearing a petition against the partnership or any of its members the court may dismiss it, or adjourn the hearing conditionally or unconditionally or make any other order that it thinks fit. The order may contain directions as to the conduct of any insolvency proceedings in existence against any insolvent member.

Notes: [s125(M) ands271(M), art 10,Sch 6(3)]

45.199 Hearing of petitions against members

Section 125A, as inserted, deals with what may happen at the hearing of concurrent petitions presented against members and is as detailed at paragraphs 45.181 - 45.185.

Notes: [s125A asinserted underart 10, Sch 6]

[Back to Part 20 - Winding up on a member's petition where no concurrent petitions presented against a member] [On to Part 22 - Action against individual partners only]