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92. Miscellaneous.
ORDER 92
MISCELLANEOUS
1. Language of documents. (O. 92 r. 1)
Any document required for use in pursuance of these rules shall be in the national language, and may be accompanied by a translation thereof in the English language except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) must be prepared in accordance with rule 6(5) of that Order; [Am. PU(A)342/2000 w.e.f.22 Sept 2000];
Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.
2. Seal of the Court. (O. 92 r. 2)
Every document issued by the Registry for which Form marked with the word "seal" as prescribed in Appendix A must bear the seal of the Court
3. Rejection of irregular documents. (O. 92 r. 3)
The Registrar, or any officer charged with the duty of receiving and filing any document, may reject it if it does not substantially comply with these rules.
3A. Transfer of proceedings. (O. 92, r. 3A) .
(1) An order to transfer any proceedings from a High Court to another shall be made with the approval of the Chief Judges.
(2) An order to transfer any proceedings from a Judge of a High Court to another Judge of that High Court shall be made with the approval of the Chief Judge of that High Court.
(3) Before making any order to transfer any proceedings from a subordinate court to a High Court or from a High Court to a subordinate court or from a subordinate court to another subordinate court, the Chief Judge shall take into consideration whether the High Court or subordinate court which shall hear the case is located at or nearest to the place where-
(a) the cause of action arose;
(b) the defendant, or one of the several defendants, resides or has his place of business;
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(d) for other reasons it is desirable in the interests of justice that the proceedings should be had.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
3B. Practice directions. (O. 92, r. 3B) .
The Chief Judge after consulting the Chief Justice may issue such practice directions as may be necessary for the better carrying out or giving effect to the provisions of these rules, and those of the Subordinate Courts Rules 1980.
[Ins. PU(A)342/2000 w.e.f. 22 Sept 2000]
4. Inherent powers of the Court. (O. 92 r. 4)
For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
91. Court Fees
Order 91
1. The fees and percentages in Appendix B shall be taken and paid in all causes and matters in the High Court.
Provided that nothing herein shall affect any fees fixed by any written law not by these rules expressly or impliedly repealed.
2. And provided that in proceedings by or against a Government or a department of a Government, the Government or the department of the Government, as the case may be, shall not be required to pay any Court fees, but in any case any decree, order or judgment shall provide that costs be paid by any party to the proceeding to such Government or such department of the Government, as the case may be, the amounts which would have been payable as fees but which for this proviso have not been paid, shall be payable by such party, have not been paid, shall be payable by such party, as, when recovered, shall be paid to the Registry of the Court at which such decree, order or judgment was given.
90. Lodgment in Court and Payment to Sheriff 91.
ORDER 90
LODGMENT IN COURT AND PAYMENT TO SHERIFF
1. Interpretation. (O. 90 r. 1)
In this Order–
"bank" means a bank approved by the Accountant-General;
"carry over", in relation to a fund in Court, means to transfer the fund or any part thereof from one account to another in the books of the Accountant-General;
"funds" or "funds in Court" means any money, securities, or other investments standing or to be placed to the account of the Accountant-General and includes money placed on deposit;
"interest" means the dividends and interest on all the funds referred to in the heading thereof;
"ledger credit" means the title of the cause or matter and the separate account opened or be opened under an order or otherwise in the books of the Accountant-General to which any funds are credited or to be credited;
"lodge in Court" means pay or transfer into Court, or deposit in Court;
"order" means an order or judgment of the High Court or Supreme Court, whether made in Court or in Chambers.
Lodgment in Court
2. Payment into Court under Trustees Act, 1949. (O. 90 r. 2)
(1) Subject to paragraph (2), any trustee wishing to make a payment into Court under section 62 of the Trustee Act 1949 (Act 208), must apply by summons supported by an affidavit setting out–
(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose;
(b) the names of the persons interested in or entitled to the money or securities to be paid into Court with their addresses so far as known to him;
(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct; and
(d) an address where he may be served with any summons or order, or notice of any proceedings, relating to the money or securities paid into Court.
(2) Where the money or securities represents a legacy, or residue or any share thereof, to which an infant or a person resident outside Malaysia is absolutely entitled, no affidavit need be filed under paragraph (1).
3. Notice of lodgment. (O. 90 r. 3)
Any person who has lodged money or securities in Court must forthwith give notice of the lodgment to every person appearing to be entitled to, or to have an interest in, the money or securities lodged.
4. Funds how lodged. (O. 90 r. 4)
(1) Money to be lodged in Court must be lodged by means of a direction to the Accountant-General in form (a) in Form 131.
(2) Securities issued by a company or by any body corporate constituted under any written law, being fully paid up and free from liability, may be transferred to the Accountant-General in his official name.
(3) The person lodging under paragraph (2) must execute a transfer thereof, and send such transfer together with the authority in Form 193 to the registered office of the company or body corporate in whose books the securities are to be transferred.
(4) Such company or body corporate must, after registering such transfer, forward the authority to the Accountant-General with a certificate in Form 193, that the securities have been transferred as therein authorized.
(5) Securities, other than those described in paragraph (2), may be placed in a box or packet and lodged with a direction in form (a) Form 131 with the Accountant-General.
(6) After inspecting the contents in the box or packet in the presence of the person lodging the same, and seeing that such box or packet is properly marked and secured, the Accountant-General shall receive the same and give the person lodging a receipt.
(7) The Accountant-General must, after receiving the money or securities, send to the Registrar a duplicate of the receipt that had been issued to the person lodging the same, to be filed in the Registry.
5. Crediting lodgment and dividends. (O. 90 r. 5)
Any principal money or dividends received by the Accountant-General in respect of securities in Court must be placed in his books, in the case of principal money, to the credit to which the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of dividends, to the credit to which the securities whereon such dividends accrued were standing at the time of closing of the transfer books of such securities previously to the dividends becoming due.
6. Interest on money lodged in Court. (O. 90 r. 6)
(1) Money lodged in Court to the credit of any account shall be deemed to be placed on deposit, and shall be credited with interest at such rate as is from time to time fixed by the Minister for Finance, not being greater than the highest rate of interest which for the time being can be obtained by the Government on current account from any bank in the State except–
(a) when money is paid into Court under Order 14, 22, 23 or 70; or
(b) when the amount is less than one hundred ringgit.
(2) Money on deposit shall be deemed to be withdrawn from deposit when the amount is reduced below one hundred ringgit.
7. Computation of interest. (O. 90 r. 7)
(1) Interest upon money on deposit must not be computed on a fraction of one ringgit.
(2) Interest upon money on deposit accrues by calendar months, and must not be computed by any less period.
(3) Such interest begins on the first day of the calendar month next succeeding that in which the money is placed on deposit, and ceases from the last day of the calendar month next proceeding the day of the withdrawal of the money from deposit.
(4) Interest which has accrued for or during the half-year ending on the thirtieth day of June and thirty-first day of December in every year, on money than on deposit must, on or before the fifteen days of the months respectively following, be placed by the Accountant-General to the credit to which such money is standing on every such half-yearly day.
(5) When money on deposit is withdrawn from deposit, the interest thereon which has accrued and has not been credited must be placed to the credit to which the money is then standing.
(6) When money on deposit consists of sums which have been placed on deposit at different times, and an order is made dealing with the money, and part of such money has to be withdrawn from deposit for the purpose of executing such order, the part of parts of the money dealt with by such order last placed and remaining on deposit at the time of such withdrawal must, for the purpose of computing interest, be treated as so withdrawn unless the order otherwise directs.
(7) Unless otherwise directed by an order, interest credited on money on deposit must, when or so soon as it amount to or exceeds one hundred dollars, be placed on deposit and, for the purpose of computing interest upon it, must be treated as having been placed on deposit on the last half-yearly day on which any such interest became due.
8. Applications with respect to funds in Court. (O. 90 r. 8)
(1) Where an application to the High Court–
(a) for the payment or transfer to any person of any funds in Court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such fund;
(b) for the investment, or change of investment, of any funds in Court;
(c) for payment of the dividends of or interest on any funds in Court representing or comprising money or securities lodged in Court under any written law; or
(d) for the payment or transfer out of Court of any such funds as are mentioned in subparagraph (c),
is made, the application may be disposed of in Chambers.
(2) Subject to paragraph (3), any such application must be made by summons, and unless the application is made in a pending cause or matter or an application for the same purpose has previously been made by petition or originating summons, the summons must be an originating summons.
(3) Where an application under paragraph 1(d) is required to be made by originating summons, then, if the funds to which the application relates do not exceed $5,000 in value, and subject to paragraph (4), the application may be made to the Registrar.
(4) This rule does not apply to any application for an order under Order 22.
9. Payment out of funds in Court. (O. 90 r. 9)
(1) Money paid under Order 14, 22 or 23 must be paid out on a direction to the Accountant-General in form (b) in Form 131.
(2) In all other cases the person entitled to withdraw the funds must lodge with the Accountant-General a copy of the order authorizing withdrawal, and the Accountant-General must act in accordance with such order.
(3) When an order directs any sums to be ascertained by the certificate of the Registrar, both the order and the certificate in form (c) in Form 131 must be sent to the Accountant-General.
(4) When an order directs payments out of a fund in Court of any costs directed to be taxed, the Registrar must state in his certificate, the name and address of the person to whom such costs are payable.
10. Name of payee to be stated in order. (O. 90 r. 10)
(1) Every order which directs funds in Court to be paid, transferred, or delivered out must state in full the name of every person to whom such payment, transfer, or delivery is to be made, unless the name is to be stated in a certificate of the Registrar.
(2) In the case of payment to a firm it is sufficient to state the business name of such firm.
(3) When money in Court is by an order directed to be paid to any persons described in the order, or in a certificate of the Registrar, as co-partners, such money may be paid to any one or more of such co-partners, or to the survivor of them.
11. Payment out on death of payee. (O. 90 r. 11)
(1) When funds in Court are by an order directed to be paid, transferred, or delivered to any person named or described in an order, or in a certificate of the Registrar, except to a person therein expressed to be entitled to such funds as trustee, executor, or administrator, or otherwise than in his own right, or for his own use, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, unless the order otherwise directs, on proof of the death of such person, whether on or after or, in the case of payment directed to be made to a creditor as such, before the date of such order, be paid, transferred, or delivered to the legal personal representatives of such deceased person, or to the survivors or survivor of them.
(2) If no administration has been taken out to the estate of such deceased person who has died intestate, and whose assets do not exceed the value of ten thousand dollars, including the amount of the funds directed to be so paid, transferred or delivered to him, such funds may be paid, transferred, or delivered to the person who, being widower, widow, child, father, mother, brother, or sister of the deceased, would be entitled to take administration to his or her estate, upon a declaration by such person in accordance with Form 194.
(3) When funds in Court are by an order directed to be paid, transferred, or delivered to any persons as legal personal representatives, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, upon proof of the death of any such representatives, whether on or after the date of such order, be paid, transferred, or delivered to the survivors or survivor of them.
(4) No funds shall under this rule be paid, transferred, or delivered out of Court to the legal personal representatives of any person under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of two years from the date of the order directing such payment, transfer, or delivery, or, in case such funds consist of interest or dividends, from the date of the last receipt of such interest or dividends or such order.
(5) When any application for an order such as is referred to in paragraphs (1) and (3) is made, notice thereof must be given to the Collector of Estate Duty who shall be entitled to attend and be heard on the matter.
12. Transfer or investment of funds in Court. (O. 90 r. 12)
(1) When funds in Court are by an order directed to be transferred or carried over, the party having the carriage of the order must lodge with the Accountant-General a copy of the order, and the Accountant-General must act in accordance with such order.
(2) When funds in Court are by an order directed to be invested, the party having the carriage of the order must lodge with the Accountant-General a copy of the order and the Accountant-General must thereupon invest such funds in the manner directed by the order.
(3) The Court may direct that any money in Court, other than money under Orders 14, 22, 23 and 70, may be invested in any of the securities in which trustees are by law permitted to invest trust money in their hands, or it may order such money to be deposited in the Post Office Savings Bank, provided that it exceeds ten dollars and does not exceed the highest sum which may be deposited therein.
13. Proof to Accountant-General before payment. (O. 90 r. 13)
When any person is entitled under an order or direction to receive any payment from the Accountant-General, and the Accountant-General requires evidence of life, or of the fulfilment of any conditions affecting such payment, such evidence may be furnished by a statutory declaration made by a solicitor acting on behalf of such person, or by the person entitled to such payment.
14. Copy of order or certificate to be sent to Auditor-General. (O. 90 r. 14)
An office copy of every order of Court and certificate to be acted upon by the Accountant-General, and of every direction to the Accountant-General, must be forwarded by the Registrar to the Auditor-General.
15. Accountant-General to give certificate of funds in Court. (O. 90 r. 15)
(1) the Accountant-General, upon a request signed by or on behalf of a person claiming to be interested in any funds in Court standing to the credit of an account specified in such request, must, unless there is good reason for refusing, issue a certificate of the amount and description of such funds, such certificate shall have reference to the morning of the day of the date thereof, and shall not include the transactions of that day.
(2) The Accountant-General must notify on such certificate the dates of any orders restraining the transfer, sale, delivery out, or payment of other dealing with the funds in Court to the credit of the account mentioned in such certificate, and whether such orders affect principal or interest, and any charging orders affecting such funds, of which respectively he has received notice and the names of persons to whom notice is to be given, or in whose favour such restraining or charging orders have been made.
(3) The Accountant-General may re-date any such certificate, provided that no alteration in the amount or description of funds has been made since the certificate was issued.
(4) When a cause or matter has been inserted in the list referred to in rule 16, that fact shall be notified in the certificate relating thereto.
16. Publication of list of funds in Court. (O. 90 r. 16)
In the month of January in every year the Accountant-General shall cause to be published in the Gazette a list of accounts not dealt with for a period of ten years or more and must give the title and number of the cause or matter and the title of the ledger credit in which funds are outstanding, and the balance of the funds in each account.
17. Unclaimed funds in Court with Accountant-General. (O. 90 r. 17)
(1) The funds in Court appearing from the books and accounts to have been in the custody with the Accountant-General for a period of fifteen years and upwards, without any claim having been made and allowed thereto during that period, must be transferred and paid to the Government for the general purposes of the State.
(2) If any claim is made to any part of the funds in Court which are transferred and paid to the Government under paragraph (1), and if such claim is established to the satisfaction of the Court, the Government must pay to the claimant the amount of the principal so transferred and paid as aforesaid, or so much thereof as appears to be due to the claimant.
(3) Nothing in this rule shall authorize the transfer of any funds standing to the separate credit of an infant, or held in an infant’s account pending the coming of age of such infant, until such infant comes of age or dies.
Payment to Sheriff
18. Sheriff to keep an account book. (O. 90 r. 18)
(1) The sheriff must keep an account of all sums of money paid or deposited with him and of all sums of money paid out by him in an account book in Form 195.
(2) All money paid or deposited with the sheriff must be kept in a bank or with the Accountant-General.
(3) No interest shall be payable in respect of any money paid or deposited with the sheriff.
19. How money paid to Sheriff. (O. 90 r. 19)
Money paid or deposited with the sheriff under these rules or a judgment or order of a Court must be paid to the proper officer in the Registry who must give a receipt for every sum of money received by him.
20. Payment in under judgment or order. (O. 90 r. 20)
Where any payment is made under a judgment or order the person making the payment must produce a copy of the judgment or order and he must give notice to the person entitled to the money.
21. Money not required for making payments on day of receipt. (O. 90 r. 21)
Any money paid or deposited with the sheriff that it is not required for making payments on that day must be paid into the bank or to the Accountant-General, as the case may be:
Provided that where the payment to the bank or to the Accountant- General, as the case may be, cannot be made on the day of receipt, it must be made on the morning of the next working day.
22. Accountant-General to grant an imprest. (O. 90 r. 22)
(1) Where the money is kept by the Accountant-General, he must grant an imprest to the sheriff and the imprest must be kept by the sheriff in a bank.
(2) All cheques in respect of the bank account must be signed by the sheriff and another officer appointed by the Registrar.
23. Cash book for imprest. (O. 90 r. 23)
(1) The sheriff operating the imprest must maintain a Cash Book in which must be entered all sums received under the imprest (including reimbursements from the Accountant-General) and all payments made from the imprest.
(2) A supervisory officer must be made personally responsible for making (at least once a week) surprise checks of the Cash Book, for comparing all the entries with receipted vouchers and other relevant documents and for ensuring that the balance of cash agrees with the balance shown in the Cash Book, and the officer must also satisfy himself that cash is not drawn from the bank in excess of normal requirements.
(3) A record of all surprise inspections must be made in the Cash Book.
24. How payments from imprest to be made. (O. 90 r. 24)
(1) All payments from the imprest must be made by cheques and an acknowledgment received or a receipt obtained from the person to whom the cheque is paid.
(2) When the balance of the imprest reaches a figure sufficient for 7 days’ anticipated requirements, the Cash Book must be balanced and the sums paid from the imprest recovered from the Accountant-General.
(3) The receipts must be attached to a bill showing the total amount of the payments; if the receipts are numerous, the receipts and a machine-list of the amounts only may be attached to the bill.
(4) This bill and attachments must be sent to the Accountant-General at least 7 days before the money is actually required.
25. Proof before payment out. (O. 90 r. 25)
Before any money is paid out to any person, the sheriff must require proof to his satisfaction that the person applying for payment is the person entitled or authorized to receive it.
26. Where money due to Government under any law. (O. 90 r. 26)
Before any money is paid out under any order directing the payment out of any money paid or deposited with the sheriff, the sheriff must satisfy himself that any money due to Government under any written law of which he has notice has been paid or deducted.
27. When payment to be made by cheque. (O. 90 r. 27)
(1) All payments by the sheriff of an amount exceeding fifty ringgit must be made by cheque payable to the person entitled to receive the payment and marked "payable only within 30 days from date".
(2) If the payment is to be made to–
(a) any Government department;
(b) any body corporate
(c) an advocate and solicitor; or
(d) a moneylender under the Moneylenders Ordinance, 1951. (42/51)
the cheque must be crossed to the payee’s account and marked "not negotiable".
(3) Where a cheque has not been cashed within 30 days of its date a fresh cheque may be issued to replace it.
89. Summary Proceedings for Possession of Land.
ORDER 89
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND [Ins. P.U. (A) 114/84]
1. Proceedings to be brought by originating summons. (O. 89 r. 1)
Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
2. Forms of originating summons. (O. 89 r. 2)
The originating summons shall be in Form No. 8A and no acknowledgment of service shall be required.
3. Affidavit in support. (O. 89 r. 3)
The plaintiff shall file in support of the originating summons an affidavit stating–
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.
4. Service of originating summons. (O. 89 r. 4)
(1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him–
(a) personally or in accordance with Order 10, rule 5; or
(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or
(c) in such other manner as the Court may direct.
(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with paragraph (1) be served, unless the Court otherwise directs, by–
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and
(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".
(3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Court out of which the summons was issued.
(4) Order 28, rule 3 shall not apply to proceedings under this Order.
5. Application by occupier to be made a party. (O. 89 r. 5)
Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
6. Order for possession. (O. 89 r. 6)
(1) A final order shall not be made on the originating summons except by a Judge in person and shall, except in case of urgency and by leave of the Court, not be made less than 5 clear days after the date of service.
(2) An order for possession in proceedings under this Order shall be in Form No. 193A.
(3) Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ.
7. Writ of possession. (O. 89 r. 7)
(1) Order 45, rule 3(2), shall not apply in relation to an order for possession under this Order but no writ of possession to enforce such an order shall be issued after the expiry of three months from the date of the order without the leave of the Court.
8. Setting aside order. (O. 89 r. 8)
The Judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.
88. Companies Act 1965.
ORDER 88
COMPANIES ACT 1965
1. Interpretation. (O. 88 r. 1)
In this Order "Act" means the Companies Act 1965 (Act 125).
2. Applications to be made by originating summons. (O. 88 r. 2)
(1) Unless otherwise provided in the Act, and except in the case of the applications mentioned in rules 3, 4 and 5, every application under the Act must, in accordance with Order 5, rule 3, be made by originating summons.
(2) No appearance need be entered to an originating summons under this rule unless the application made by the summons is–
(a) an application under section 173 of the Act for an order to make provision for all or any of the matters mentioned in subsection (1) of that section where an order approving the compromise or arrangement to which the application relates has previously been made; or
(b) an application under section 192 of the Act for an order directing a receiver or manager of a company to make good any such default as is mentioned in subsection (1) of that section; or
(c) an application under section 12 of the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section.
(3) An application under section 357 of the Act may be made by ex parte originating summons.
3. Application to be made by originating summons or motion. (O. 88 r. 3)
(1) An application under section 162 of the Act for rectification of the register of members of a company may be made by originating summons or originating motion.
(2) No appearance need be entered to an originating summons under this rule.
4. Applications to be made by originating motion. (O. 88 r. 4)
The following applications under the Act must be made by originating motion, namely, applications–
(a) under section 27 of the Act for an order that a company be relieved from the consequences of default in complying with conditions constituting the company a private company;
(b) under section 63 of the Act for an order validating the issue or allotment of shares improperly issued or confirming the terms of issue or allotment thereof;
(c) under section 88(5) of the Act for an order to confirm, set aside or vary a direction of the holders of the interests;
(d) under section 95(4) of the Act for an order to confirm a winding up resolution;
(e) under section 200(5) of the Act for an inquiry into any such case as is mentioned therein;
(f) under section 307 of the Act for an order declaring a dissolution of a company which has not been wound up to have been void.
5. Applications to be made by petition. (O. 88 r. 5)
The following applications under the Act must be made by petition, namely, applications–
(a) under section 28 of the Act to cancel the alteration of a company’s objects;
(b) under section 59 of the Act to confirm the issue by a company of shares at a discount;
(c) under section 60 of the Act to confirm a reduction of the share premium account of a company;
(d) under section 61 of the Act to confirm a reduction of the capital redemption reserve fund of a company;
(e) under section 64 of the Act to confirm a reduction of the share capital of a company;
(f) under section 65 of the Act to cancel any variation or abrogation of the rights attached to any class of shares in a company;
(g) under section 176 of the Act to approve a compromise or arrangement between a company and its members or any class of them;
(h) under section 181 of the Act for relief in cases of oppression;
(i) under section 308(5) of the Act for an order restoring the name of a company to the Register;
(j) under section 354 of the Act for relief from liability of an officer of a company or any other person to whom this section applies.
6. Entitlement of proceedings. (O. 88 r. 6)
(1) Every originating summons, notice of originating motion and petition to which this Order relates and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Act.
(2) The originating summons by which an application for leave under section 130(1) of the Act is made must be entitled in the matter of the company (if any) in relation to which the applicant was convicted and in the matter of the Act.
7. Summons for directions. (O. 88 r. 7)
(1) After presentation of a petition by which any such application as is mentioned in rule 5 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.
(2) The application referred to in paragraph (1) are–
(a) an application under section 59 of the Act to confirm the issue by a company of shares at a discount;
(b) an application under section 176 of the Act to approve a compromise or arrangement unless there is included in the petition for such approval an application for an order under section 178 of the Act; and
(c) an application under section 308(5) of the Act for an order restoring the name of a company to the register.
(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including in particular, directions for the publication of notices and the making of any inquiry.
(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve fund, of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions–
(a) for an inquiry to be made as to the debts of, and claims against the company or as to any class or classes of such debts or claims;
(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;
and the power of the Court under section 64(3) of the Act to direct that section 64(2) thereof shall not apply as regards any class of creditors may be exercised on any hearing of the summons.
(5) Rules 8 to 13 shall have effect subject to any directions given by the Court under this rule.
8. Inquiry as to debts: Company to make list of creditors. (O. 88 r. 8)
(1) Where under rule 7 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file in the Registry an affidavit made by an officer of the company competent to make it verifying a list containing–
(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends;
(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof; and
(c) the total of those amounts and values.
(2) the deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.
(3) The list must be left at the Registry not later than one day after the affidavit is filed.
9. Inspection of list of creditors. (O. 88 r. 9)
(1) Copies of the list made under rule 8 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company’s solicitor.
(2) Any person shall be entitled during ordinary business hours, on payment of a fee of fifty cents, to inspect the said list at any such office and to take extracts therefrom.
10. Notice to creditors. (O. 88 r. 10)
Within 7 days after filing the affidavit required by rule 8 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating–
(a) the amount of the reduction sought to be confirmed;
(b) the effect of the order directing an inquiry as to debts and claims;
(c) the amount or value specified in the list as due or estimated to be due to that creditor; and
(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the company’s solicitor.
11. Advertisement of petition and list of creditors. (O. 88 r. 11)
After filing the affidavit required by rule 8 the company must insert, in such newspapers and at such times as the Court directs, a notice stating–
(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed;
(b) the inquiry ordered by the Court under rule 7;
(c) the places where the list of creditors may be inspected in accordance with rule 9; and
(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of the solicitor, if any, and particulars of his debt or claim to the company’s solicitor.
12. Affidavit as to claims made by creditors. (O. 88 r. 12)
Within such time as the Court directs the company must file in the Registry an affidavit made by the company’s solicitor and an officer of the company competent to make it–
(a) proving service of the notices mentioned in rule 10 and advertisement of the notice mentioned in rule 11;
(b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim;
(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry; and
(d) stating which of the persons named in the list made under rule 8, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.
13. Adjudication of disputed claims. (O. 88 r. 13)
If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him–
(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company; and
(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.
14. Certifying list of creditors entitled to object to reduction. (O. 88 r. 14)
The list of creditors entitled to object to such reduction as is mentioned in rule 7(4), as settled by the Court under section 64(2) of the Act, shall be certified and filed by the Registrar and his certificate shall–
(a) specify the debts or claims (if any) disallowed by the Court;
(b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under section 64(2) of the Act and other debts or claims;
(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said section 64(2);
(d) show which creditors consent to the reduction and the total amount of their debts or claims;
(e) specify the creditors who sought to prove their debts or claims under rule 13 and state which of such debts or claims were allowed.
15. Evidence of consent of creditor. (O. 88 r. 15)
The consent of a creditor to such reduction as is mentioned in rule 7(4) may be proved in such manner as the Court thinks sufficient.
16. Time, etc., of hearing of petition for confirmation of reduction. (O. 88 r. 16)
(1) A petition for the confirmation of any such reduction as is mentioned in rule 7(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 14.
(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.
17. Restriction on taking effect of order under section 59. (O. 88 r. 17)
Unless the Court otherwise directs, an order under section 59 of the Act confirming the issue of shares at a discount shall direct that an office copy of the order be delivered to the Registrar of Companies within 10 days after the making of the order or such extended time as the Court may allow and that the order shall not take effect until such copy has been so delivered.
87. Trade Marks Act 1976.
ORDER 87
TRADE MARKS ACT 1976
1. Interpretation. (O. 87 r. 1)
In this Order:
"Act" means the Trade Marks Act 1976 (Act 175).
"Registrar" means the Registrar of Trade Marks appointed under section 3 of the Act.
2. Application by notice of motion. (O. 87 r. 2)
Applications to the Court under the Act may be made by notice of motion.
3. Appeals by notice of motion. (O. 87 r. 3)
Appeals to the Court under the Act shall be given by notice of motion within one calendar month from the date of decision appealed against.
4. Service of Application on Registrars. (O. 87 r. 4)
All applications to the Court under the Act whether by way of appeal or otherwise shall be served on the Registrar.
5. Time for application. (O. 87 r. 5)
Whether the Registrar decides to refer an application or appeal to the Court, the applicant or appellant shall apply to the Court within one calendar month from the date of the decision so to refer, and unless he so applies he shall be deemed to have abandoned the application or appeal.
6. Notice of intention to withdraw application. (O. 87 r. 6)
Where under section 19(5) or section 27(8) of the Act an applicant becomes entitled and intends to withdraw his application, he shall give notice of the intention in writing to the Registrar and to the other parties, if any, to the appeal within one month after the leave referred in those subsections has been obtained.
7. Counterclaim for rectification of registrar. (O. 87 r. 7)
A defendant in an action for infringement may, in regard to any registered trade mark in issue, counterclaim for the rectification of the register and shall within the time limited for the delivery of the counterclaim serve the Registrar with the same, and the Registrar shall be entitled to take such part in the action as he may think fit without delivering a defence or other pleading.
8. Extension of time. (O. 87 r. 8)
The times specified in rules 3 and 5 of this Order may be extended by the Court or Registrar upon the application of any party interested and notwithstanding that the time so specified has expired.
9. Proceeding for infringement of registered trade mark: Validity of registration disputed. (O. 87 r. 9)
(1) Where in any proceedings a claim is made for relief for infringement of the right to the use of a registered trade mark, the party against whom the claim is made may in his defence put in issue the validity of the registration of that trade mark or may counterclaim for an order that the register of trade marks be rectified by cancelling or varying the relevant entry or may do both those things.
(2) A party to any such proceedings who in his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered trade mark must serve with the pleading particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity.
(3) A party to any such proceedings who counterclaims for an order that the register of trade marks be rectified must serve on the Registrar of Trade Marks a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2); and the Registrar of Trade Marks shall be entitled to take such part in the proceedings as he may think fit but need not serve a defence or other pleading unless ordered to do so by the Court.
86. Inheritance (Family Provision) Act 1971.
ORDER 86
INHERITANCE (FAMILY PROVISIONS) ACT 1971
1. Interpretation. (O. 86 r. 1)
In this Order "Act" means the Inheritance. (Family Provisions) Act 1971 (Act 39).
2. Powers of Courts as to parties. (O. 86 r. 2)
(1) Without prejudice to its powers under Order 15, the Court may at any stage of proceedings under the Act by order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.
(2) Order 15, rule 13, shall apply to proceedings under the Act as it applies to the proceedings mentioned in paragraph (1) of that rule.
3. Affidavit in support to be filed. (O. 86 r. 3)
An affidavit in support of an originating summons by which an application under section 3 of the Act is made must be filed before the first hearing of the summons and Order 28, rule 3(3), shall apply accordingly.
4. Disposal of application in Chambers, etc. (O. 86 r. 4)
Any application under the Act in which it appears to the Court that the interests of an infant or other person under disability are affected may, if the Court thinks fit so direct, be disposed of in Chambers, but any order under section 3 or 6 of the Act shall be made by the Judge in person.
5. Applications in proceedings under section 3 of the Act. (O. 86 r. 5)
Where an order has been made on an application under section 3 of the Act, any subsequent application, whether made by a party to the proceedings in which such order was made, or by a person on whom notice of the application for the order was served or by or on behalf of such person as is mentioned in section 6(2) of the Act, must be made by summons in those proceedings.
6. Indorsement of memorandum on probate, etc. (O. 86 r. 6)
(1) The personal representatives of the deceased to whose estate an application under section 3 or 6 of the Act relates must produce in Court at the hearing of the application the probate or letters of administration under which the estate is being administered; and if the Court makes an order under the Act or an order dismissing the application the probate or letters of administration shall remain in the custody of the Court until section 5(3) of the Act has been complied with.
(2) the memorandum of the order required by section 5(3) of the Act to be indorsed or annexed as therein mentioned must set out the title of the proceedings in question and the operative part of the order in full.
