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Sec. 2 COMPANIES (AMENDMENT) ACT, 1990
Power of court to appoint examiner.
Power of court to appoint examiner.
Power of court to appoint examiner.
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2.—(1) Where it appears to the court that—
(a) a company is or is likely to be unable to pay its debts, and
(b) no notice of a resolution for the winding-up of the company has been given under section 252 of the Principal Act more than 7 days before the application hereinafter referred to, and
(c) no order has been made for the winding-up of the company,
it may, on application by petition presented, appoint an examiner to the company for the purpose of examining the state of the company's affairs and performing such duties in relation to the company as may be imposed by or under this Act.
(2) Without prejudice to the general power of the court under subsection (1), it may, in particular, make an order under this section if it considers that such order would be likely to facilitate the survival of the company, and the whole or any part of its undertaking, as a going concern.
(3) For the purposes of this section, a company is unable to pay its debts if—
(a) it is unable to pay its debts as they fall due,
(b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities, or
(c) section 214 (a) or (b) of the Principal Act applies to the company.
(4) In deciding whether to make an order under this section the court may also have regard to whether the company has sought from its creditors significant extensions of time for the payment of its debts, from which it could reasonably be inferred that the company was likely to be unable to pay its debts.