Variable Capital Companies Act 2018 · 2020 Revised Edition · Part 11 · Winding Up
130. Application of Parts 8 and 9 of IRDA
Feedback & supportLast amended by an amending law of 2020. 2 amendments in all.
Part 8 and Part 9 (as it applies to winding up) of the IRDA apply in relation to the winding up of a VCC as they apply in relation to the winding up of a company limited by shares, subject to section 5 and the modifications in this section.
VCC
“VCC” or “variable capital company” means a body corporate incorporated as such under this Act;
Sections 121(1)(f), (2) and (3), 124(2)(c), 128(3), 139(10), 158, 205(2) and 241(7) of the IRDA are omitted.
A reference to an officer of a company in the following:
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);
Division 2 of Part 8 of the IRDA;
Division 5 of Part 9 of the IRDA (other than section 237(1));
sections 186(3), 188(5), 209(10)(b), 210(10)(b) and 243(2)(a) of the IRDA,is a reference to —
an officer of the VCC;
the manager of the VCC; or
the custodian of the VCC (being a non-umbrella VCC).
A reference in section 244(1) of the IRDA to an officer of the company is to —
company
“company” has the meaning given by section 4(1) of the Companies Act 1967;
an officer of the VCC;
an officer of the manager of the VCC; or
an officer of the custodian of the VCC (being a non-umbrella VCC).
The following provision applies in place of section 124(1) of the IRDA (which sets out who may apply to the Court for the winding up of a company): “A VCC, whether or not it is being wound up voluntarily, may be wound up under an order of the Court on the application of one or more of the following: (a)the VCC; (b)any director of the VCC; (c)any creditor, including a contingent or prospective creditor, of the VCC; (d)a contributory of the VCC, or any person who is the personal representative of a deceased contributory of the VCC or the Official Assignee of the estate of a bankrupt contributory of the VCC; (e)the liquidator; (f)the Minister pursuant to section 119(1); (g)the Minister on a ground specified in paragraph (c), (j), (l), (m) or (n) of the provision that replaced section 125(1) of the IRDA under subsection (6); (h)MAS on a ground specified in paragraph (o) of the provision that replaced section 125(1) of the IRDA under subsection (6).”.
The following provision applies in place of section 125(1) of the IRDA (which sets out the grounds on which the Court may order a company to be wound up): “The Court may order the winding up of a VCC if —
the VCC has by special resolution resolved that it be wound up by the Court; (b)the VCC does not commence business within a year after the date of its incorporation or suspends its business for a whole year; (c)the VCC has no member; (d)the VCC is unable to pay its debts; (e)MAS has under section 288 of the Securities and Futures Act 2001* revoked or withdrawn the authorisation of the collective investment scheme constituted as the VCC; (f)the directors have acted in the affairs of the VCC in their own interests rather than in the interests of the members as a whole, or in any other manner which appears to be unfair or unjust to other members; (g)an inspector appointed under Part 9 has reported that he or she is of the opinion —
that the VCC cannot pay its debts and should be wound up; or (ii)that it is in the interests of the public, the shareholders or the creditors that the VCC should be wound up; (h)the period (if any) fixed for the duration of the VCC by the constitution of the VCC expires or, where the constitution of the VCC provides that the VCC is to be dissolved on the occurrence of an event, that event happens; (i)the Court is of the opinion that it is just and equitable that the VCC be wound up; (j)the VCC has carried on multi-level marketing or pyramid selling in contravention of the Multi-Level Marketing and Pyramid Selling (Prohibition) Act 1973*; (k)the VCC is being used for an unlawful purpose or for purposes prejudicial to public peace, welfare or good order in Singapore or against national security or the national interest; (l)the VCC, being a foreign corporate entity that was registered as a VCC under section 135(1), has breached any of the conditions imposed under that section for its registration; (m)the VCC has conducted business outside the scope of its sole object in section 15; (n)the VCC has contravened section 46 for no less than the period prescribed by regulations under section 165; or (o)the VCC has —
contravened a direction issued under section 83(1) or 84(1); or (ii)contravened section 84(3), or any regulation made under section 83(1) or 84(1).”.
A reference in a provision of the IRDA as applied by this section in the first column of the following table, to a paragraph of section 125(1) of the IRDA in the second column of the table, is to the paragraph of the provision that replaces section 125(1) of the IRDA in subsection (6) and is opposite the firstmentioned paragraph in the third column of the table:Provision of IRDA that is applied by this sectionParagraph of section 125(1) of IRDAParagraph of provision in subsection (6)Section 124(2)(b)Paragraph (a)Paragraph (a) Paragraph (b)— Paragraph (c)Paragraph (b) Paragraph (e)Paragraph (d) Paragraph (i)Paragraph (i)Sections 125(4) and (5), 134(d), 135(4) and 198Paragraph (n)Paragraph (k)
In section 125(5) of the IRDA —
the reference to employees of a company is to employees of the VCC, and includes any person engaged by the VCC to provide any fund administration service; and
the reference to a chief executive officer is omitted.
The reference in section 139(5) of the IRDA to treasury shares is to shares held by a subsidiary of the VCC under section 22(6) or (11), if any.
subsidiary
“subsidiary” has the meaning given by section 5 of the Companies Act 1967;
A reference to Part 8, 9, 10 or 11 of the IRDA in sections 145 and 202 of that Act is to Part 8 or 9 (as the case may be) of the IRDA as applied by this section.
The following provision applies in place of section 153(1) of the IRDA (which enables the Court to direct a contributory to pay to a company moneys due from the contributory and the extent to which set-off is allowed): “The Court may make an order directing any contributory of the VCC on the list of contributories of the VCC to pay to the VCC, in the manner directed by the order, any money due from the contributory or from the estate of the person whom the contributory represents (excluding any money payable by the contributory or the estate by virtue of any call in pursuance of this Act), and when all the creditors are paid in full, any money due on any account to a contributory from the VCC may be allowed to the contributory by way of set-off against any subsequent call.”.
A reference in section 157 of the IRDA to the affairs of the company is to the affairs of the VCC.
The reference in section 157 of the IRDA to a contributory, director or former director of a company is to —
director
“director” has the meaning given by section 4(1) of the Companies Act 1967;
a contributory, director or former director of a VCC; or
a director or former director of the manager or the custodian of the VCC (being a non-umbrella VCC).
Rules of Court made under section 164 may make provision enabling or requiring all or any of the powers and duties conferred and imposed on the Court by Parts 8 and 9 of the IRDA (as applied by this section) in respect of —
the holding and conducting of meetings to ascertain the wishes of creditors and contributories of the VCC;
the settling of lists of contributories of the VCC, the rectifying of the register of members where required, and the collecting and applying of the assets;
the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;
the making of calls and the adjusting of the rights of contributories of the VCC; and
the fixing of a time within which debts and claims must be proved,to be exercised or performed by the liquidator as an officer of the Court and subject to the control of the Court, but the liquidator must not, except with the special leave of the Court, rectify the register of members, and must not make any call except with the special leave of the Court or the sanction of the committee of inspection.
A reference in section 159(1) or 177 of the IRDA to any power of, given to or conferred on the Court or the liquidator under or by that Act is to any power of, given to or conferred on the Court or the liquidator (as the case may be) under or by a provision of this Act (including by a provision of the Companies Act 1967* or the IRDA applied by this Act).
liquidator
“liquidator” includes the Official Receiver when acting as the liquidator of a VCC or a sub‑fund;
A reference in section 138(1), 141(4), 144(1), 146(1), 161(2), 169(3) or 220 of the IRDA to regulations is to regulations made under section 165.
The reference in section 188(5) of the IRDA to an agent of a company is to an agent of the VCC, and includes 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;
The following provision applies in place of section 194 of the IRDA: “(1) Where a VCC is being wound up —
every invoice, order for goods, business letter, order form or other correspondence (whether in hard copy, electronic or any other form) issued by or on behalf of —
the VCC; (ii)the receiver or manager of the property of the VCC; or (iii)the liquidator of the VCC, being a document on or in which the name of the VCC appears; and (b)every Internet website of the VCC on which the name of the VCC appears, must have the words “in liquidation” added after the name of the VCC where it first appears in that document or Internet website. (2) A provisional liquidator appointed over a VCC must comply with subsection (1), except that the words “in provisional liquidation” must be added after the name of the VCC instead of the words “in liquidation”. (3) If there is any default in complying with this section, each of the following shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and also to a default penalty: (a)the VCC; (b)each of the following persons who knowingly and wilfully authorises or permits the default: (i)an officer of the VCC; (ii)a liquidator of the VCC; (iii)a provisional liquidator of the VCC; (iv)a receiver or manager of the property of the VCC.”.
The reference in section 197 of the IRDA to the Companies Liquidation Account is to a VCC Liquidation Account.
The reference in section 203(9) of the IRDA to 29 December 1967 is to the date of commencement of this Act.
The reference in section 203(10)(a) of the IRDA to the reconstruction or amalgamation of a company with another company is to the reconstruction or amalgamation of the VCC with a company or another VCC.
Section 214(1)(b) and (c) of the IRDA is omitted.
The reference in section 215 of the IRDA to the operation of a previous written law corresponding to Subdivision (3) of Division 4 of Part 8 of the IRDA is omitted.
In Part 9 of the IRDA as applied by this section, a person is connected with a VCC if —
the person is a director of the VCC or an associate of such director;
the person is the manager of the VCC or an associate of such manager; or
the person is an associate of the VCC.
In subsection (24), “associate” has the meaning given by section 217 of the IRDA, except that —
an umbrella VCC that is a beneficiary or one of the beneficiaries of a trust, or for whose benefit a power under a trust may be exercised, is an associate of a person under section 217(7) of the IRDA only if it is an associate of the person on account of the sub-fund (within the meaning of section 130A) in relation to which it is such beneficiary, or in relation to which the power may be exercised for its benefit; and
section 130A(4) and (5) applies for the purpose of determining whether an umbrella VCC controls a corporation under section 217(8) or (9) of the IRDA.
Where —
the unfair preference mentioned in section 225(5) or 226(1)(b) of the IRDA is given by the VCC to an umbrella VCC for the purpose of a sub-fund of the umbrella VCC;
the transaction mentioned in section 226(3) of the IRDA is entered into by the VCC with an umbrella VCC for the purpose of a sub-fund of the umbrella VCC;
the interest mentioned in section 227(4) of the IRDA is acquired by an umbrella VCC for the purpose of a sub-fund of the umbrella VCC;
the benefit or unfair preference mentioned in section 227(4) of the IRDA is received by an umbrella VCC for the purpose of a sub-fund of the umbrella VCC; or
the floating charge mentioned in section 229 of the IRDA is created by the VCC in favour of an umbrella VCC for the purpose of a sub-fund of the umbrella VCC,then, for the purpose of that provision of the IRDA, the umbrella VCC is connected with —
the VCC; or
in the case of paragraph (c) or (d), the person with whom the VCC entered into the transaction or to whom the VCC gave the unfair preference, as the case may be,only if the umbrella VCC is an associate of the following (whichever is applicable) on account of the sub-fund of the umbrella VCC as defined in section 130A:
the VCC or the manager or any director of the VCC;
the person mentioned in paragraph (g), as the case may be.
The reference in section 237(1) of the IRDA to an investigation under the IRDA is to an investigation under this Act.
The following provision applies in place of section 237(3) of the IRDA (which sets out when proper books of account are considered not to have been kept by a company under section 237(1) of that Act): “For the purposes of section 237(1), proper books of account are considered not to have been kept if —
there have not been kept such books or accounts as are necessary to exhibit and explain the transactions and financial position of the trade or business of the VCC, including —
books containing entries from day to day in sufficient detail of all cash received and cash paid; and (ii)where the trade or business involved dealings in goods, statements of the annual stocktakings and of all goods sold and purchased, showing the goods and the buyers and sellers of those goods in sufficient detail to enable those goods and those buyers and sellers to be identified; or (b)such books or accounts have not been kept in such manner as to enable them to be conveniently and properly audited, whether or not the VCC has appointed an auditor.”.
The reference in section 241(7) of the IRDA to an agent of a company is to an agent of the VCC, and includes —
a banker or solicitor of the VCC;
any person employed by the VCC as an auditor, whether or not an officer of the VCC; and
any person engaged by the VCC to provide any fund administration service.