Variable Capital Companies Act 2018 · 2020 Revised Edition · Part 10 · Receivers and Managers
125. Application of Part 6 of IRDA
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Part 6 of the IRDA (except section 73) applies in relation to a receiver or manager of the property of a VCC or a sub-fund of an umbrella VCC, as it applies in relation to a receiver or manager of the property of a company, subject to section 5, the modifications set out in this section and sections 126, 127 and 128.
manager
“manager”, in relation to a VCC, means the manager appointed by the VCC to manage its property or to operate the collective investment scheme or schemes that comprise the VCC;
A reference in a provision of Part 6 of the IRDA to the assets, property, debts, liabilities or creditors of a company is to the assets, property, debts, liabilities or creditors of the VCC or of the sub-fund, as the case may be.
company
“company” has the meaning given by section 4(1) of the Companies Act 1967;
Except as otherwise stated in this section and sections 126, 127 and 128, a reference in a provision of Part 6 of the IRDA to the company is to the VCC.
VCC
“VCC” or “variable capital company” means a body corporate incorporated as such under this Act;
A reference in a provision of Part 6 of the IRDA (including any provision replacing it in this section) to a receiver includes a receiver and manager.
In addition to the persons mentioned in section 74(1) of the IRDA, the following persons are also not qualified to be appointed as a receiver or manager of the property of the VCC or the sub-fund of the VCC, and must not act as such:
sub-fund
“sub-fund” means a collective investment scheme that is part of an umbrella VCC;
the manager of the VCC, the custodian of the VCC (being a non-umbrella VCC) or the custodian of a sub-fund of the VCC;
a director, a secretary or an employee of such manager or custodian.
The reference in section 75(2) of the IRDA to the rights of a receiver against the company is to the rights of a receiver or manager against the VCC or the umbrella VCC in respect of the sub-fund, as the case may be.
umbrella VCC
“umbrella VCC” means a VCC the constitution of which provides that it consists of, or is to consist of, 2 or more collective investment schemes, or words to that effect;
A reference in section 76(2) or 83(1)(c) of the IRDA to holders of debentures of the company is to holders of debentures of the VCC or of the sub-fund, as the case may be.
The following provision applies in place of section 78(1) of the IRDA (which enables the Court to fix the remuneration of a receiver or manager of a company): “The Court may —
on an application by the liquidator of a VCC, by order fix the amount to be paid as remuneration to a person who, under a power contained in any instrument, has been appointed as receiver or manager of the property of the VCC or its sub-fund; or (b)on an application by the liquidator of a sub-fund, by order fix the amount to be paid as remuneration to a person who, under a power contained in any instrument, has been appointed as receiver or manager of the property of the sub-fund.”.
The following provision applies in place of section 79 of the IRDA (which is about the appointment of a company’s liquidator as receiver or manager of the company): “Where an application is made to the Court to appoint a receiver or manager on behalf of holders of debentures or other creditors of —
liquidator
“liquidator” includes the Official Receiver when acting as the liquidator of a VCC or a sub‑fund;
a VCC; or (b)a sub-fund, which is being wound up by the Court, the Court may appoint the liquidator of the VCC or sub-fund as such receiver or manager.”.
The reference to regulations in section 80(3) of the IRDA is to regulations made under section 165.
A reference in sections 83(1) and 84 of the IRDA to a statement in the prescribed form as to the affairs of a company or of any particulars concerning a company in the statement, is to a statement in the prescribed form as to the affairs of the VCC or of the sub-fund (as the case may be), or of those particulars concerning the VCC or the sub-fund, as the case may be.
The reference in section 83(3) of the IRDA to the winding up of the company is to the winding up of the VCC or the sub-fund, as the case may be.
The reference in section 84(3)(a) of the IRDA to an officer of the company is to —
officer
“officer”, in relation to a VCC or other corporation, includes —(a)any director or secretary of the corporation or a person employed in an executive capacity by the corporation;(b)a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; and(c)any liquidator of the corporation (being a VCC or company) appointed in a voluntary winding up,but does not include —(d)any receiver who is not also a manager;(e)any receiver and manager appointed by the Court;(f)any liquidator appointed by the Court or by the creditors; or(g)a judicial manager appointed by the Court under Part 8A of the Companies Act 1967 (if applicable);
where the statement in that section is to be submitted to the receiver of the property of a VCC — an officer or the manager of the VCC or the custodian of the VCC (being a non-umbrella VCC); and
where the statement in that section is to be submitted to the receiver of the property of a sub-fund — an officer or the manager of the VCC or the custodian of the sub-fund.
The reference in section 84(3)(b) of the IRDA to a person who has taken part in the formation of the company is to a person who has taken part in the formation of the VCC or the sub-fund, as the case may be.
The reference in section 84(3)(c) of the IRDA to a person in the employment of the company is to a person in the employment of the VCC, or a person engaged by the VCC to provide any fund administration service.
fund administration service
“fund administration service” includes valuation, accounting, settlement of expenses and acting as a transfer agent;
An application under section 85(2) of the IRDA for the audit of the accounts of the receiver or manager of the property of the VCC may be made by the VCC or a creditor of the VCC.
accounts
“accounts” means profit and loss accounts and balance sheets and includes notes (other than auditors’ reports or directors’ reports) attached or intended to be read with any of those profit and loss accounts or balance sheets;
An application under section 85(2) of the IRDA for the audit of the accounts of the receiver or manager of the property of the sub-fund may be made by the umbrella VCC of which the sub-fund is a part, or a creditor of the sub-fund.
A reference in section 85(4) of the IRDA to a request of the company or a creditor is to a request of the VCC, the umbrella VCC of which the sub-fund is a part, or a creditor of the VCC or the sub-fund, as the case may be.