Section 4: Section 4: The Officeholder
Article 135 - Fixing of remuneration(1) The officeholder is entitled to receive remuneration for his services as such.(2) The remuneration shall be fixed at the first meeting of the
Creditors' Committee:(A) as a percentage of the value of the property with which he has to deal; or(B) by reference to the time properly given by the insolvency practitioner (as officeholder) and his staff in attending to matters arising in the insolvency proceedings; or(C) as a set amount.(3) It is for the Creditors' Committee(if there is one) to determine whether the remuneration is to be fixed under Article 135(2)(A), (B) or (C) and, if under Article 135(2)(A), to determine any percentage to be applied as there mentioned.(4) In arriving at that determination, the Creditors' Committeeshall have regard to the following matters:(A) the complexity (or otherwise) of the case;(B) any respects in which, in connection with the Company'saffairs, there falls on the officeholder any responsibility of an exceptional kind or degree;(C) the effectiveness with which the officeholder appears to be carrying out, or to have carried out, his duties as such, and(D) the value and nature of the property with which he has to deal.(5) If no Creditors' Committeeis established by the first meeting of creditors, the officeholder's remuneration may be fixed (in accordance with Article 135(2)) by a resolution of that first meeting of creditors; and Article 135}(4) applies to them as it does to the Creditors' Committee.(6) If not fixed as above, the officeholder's remuneration shall, on his application, be fixed by the QFC Court.
Article 136 - Recourse to meeting of creditors
If the officeholder's remuneration has been fixed by the
Creditors´ Committee, and he considers the rate or amount to be insufficient, he may request that it be increased by resolution of the creditors.
Article 137 - Recourse to the QFC Court(1) If the officeholder considers that the remuneration fixed for him by the
Creditors' Committee, or by resolution of the creditors, is insufficient, or the basis of the officeholder's remuneration is not fixed within 18 months after the date of his appointment, he may apply to the QFC Courtfor an order fixing or increasing its amount or rate.(2) The officeholder shall give at least 14 days' notice of his application to the members of the Creditors' Committee; and the Creditors' Committeemay nominate one or more members to appear or be represented, and to be heard, on the application.(3) If there is no Creditors' Committee, the officeholder's notice of his application shall be sent to such one or more of the Company'screditors as the QFC Courtmay direct, which creditors may nominate one or more of their number to appear or be represented.(4) The QFC Courtmay, if it appears to be a proper case, order the costs of the officeholder's application, including the costs of any member of the Creditors' Committeeappearing or being represented on it, or any creditor so appearing or being represented, to be paid as an expense of the insolvency proceedings.
Article 138 - Creditors' claim that remuneration is excessive(1) Any
Secured Creditor, or any unsecured creditor with the concurrence of at least 25 per cent in value of the creditors (including himself) or with the permission of the QFC Court, may, at any time before the officeholder's release but not thereafter, apply to the QFC Courtfor an order that the officeholder's remuneration be reduced, on the grounds that it is, in all the circumstances, excessive.(2) The QFC Courtmay, if it thinks that no sufficient cause is shown for a reduction, dismiss the application; but it shall not do so unless the applicant has had an opportunity to attend the QFC Courtfor an ex parte hearing, of which he has been given at least seven days' notice.(3) If the application is not dismissed under Article 138(2), the QFC Courtshall fix a venue for it to be heard, and give notice to the applicant accordingly.(4) The applicant shall, at least 14 days before the hearing, send to the officeholder a notice stating the venue accompanied by a copy of the application, and any evidence which the applicant intends to adduce in support of it.(5) If the QFC Courtconsiders the application to be well-founded, it shall make an order fixing the remuneration at a reduced amount or rate.(6) Unless the QFC Courtorders otherwise, the costs of the application shall be paid by the applicant, and are not payable as an expense of the insolvency proceedings.
Article 139 - Abstract of receipts and payments(1) The officeholder shall:(A) within two months after the end of six months from the date of his appointment, and of every subsequent period of six months; and(B) within two months after he ceases to act as officeholdersend to the
QFC Court, and to the CRO, and to each member of the Creditors' Committee, the requisite accounts of the receipts and payments of the Company.(2) The accounts are to be in the form of an abstract showing:(A) receipts and payments during the relevant period of six months; or(B) where the officeholder has ceased to act, receipts and payments during the period from the end of the last six month period to the time when he so ceased (alternatively, if there has been no previous abstract, receipts and payments in the period since his appointment as officeholder).
Article 140 - Resignation(1) The officeholder may give notice of his resignation on grounds of ill health or because:(A) he intends ceasing to be in practice as an insolvency practitioner or to be registered as an insolvency practitioner under these Regulations; or(B) there is some conflict of interest, or change of personal circumstances, which precludes or makes impracticable the further discharge by him of his duties as officeholder.(2) The officeholder may, with the leave of the
QFC Court, give notice of his resignation on grounds other than those specified in Article 140(1).(3) The officeholder must give to the persons specified below at least seven days' notice of his intention to resign, or to apply for the QFC Court'sleave to do so:(A) if there is a continuing officeholder of the Company, to him;(B) if there is no such officeholder, to the Creditors' Committee; and(C) if there is no such officeholder and no Creditors' Committee, to the Companyand its creditors.
Article 141 - Officeholder deceased(1) Subject as follows, where the officeholder has died, it is the duty of his personal representatives to give notice of the fact to the
QFC Court, specifying the date of the death. This does not apply if notice has been given under Article 141(2) or (3).(2) If the deceased officeholder was a partner in a firm, notice may be given by a partner in the firm who is qualified to act as an insolvency practitioner (whether or not registered as such under these Regulations)(3) Notice of the death may be given by any person producing to the QFC Courtthe relevant death certificate or a copy of it and a duly authenticated translation into English if the original is not written in English.
Article 141A - Misfeasance(1) The
QFC Courtmay examine the conduct of a person who:(A) is or purports to be the officeholder in respect of a Company; or(B) has been or has purported to be the officeholder in respect of a Company.(2) An examination under this paragraph may be held only on the application of:(A) the QFC Authority;(B) the Regulatory Authority;(C) the Administratorof the Company;(D) the Liquidatorof the Company;(E) a creditor of the Company; or(F) a member of the Company.(3) An application under (2) must allege that the officeholder:(A) has misapplied or retained money or other property of the Company;(B) has become accountable for money or other property of the Company;(C) has breached a fiduciary or other duty in relation to the Company;(D) has been guilty of misfeasance; or(E) has otherwise failed to discharge the duties of his office.(4) On an examination under this paragraph into a person's conduct the QFC Courtmay:(A) impose a fine or other penalty on the office holder;(B) terminate any appointments of the officeholder;(C) order the officeholder:(i) to repay, restore or account for money or property;(ii) to pay interest;(iii) to contribute a sum to the Company'sproperty by way of compensation for breach of duty or misfeasance.