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Section 851: Application of rules of law restricting distributions

1158. This section is a new provision which preserves the existing common law rules on unlawful distributions (see subsection (1)) – which continue to be an essential component in determining what amounts to an unlawful distribution.

1159. Subsection (2) makes an exception to this: in particular, it provides that the lawfulness and amount of distributions in kind are established by the statutory rules in sections 845 and 846 and not by any applicable common law rules.

PART 24: A COMPANY’S ANNUAL RETURN

1160. This Part restates Chapter 3 of Part 11 of the 1985 Act. It requires every company to deliver to Companies House an Annual Return with the specified information. The only significant difference from the 1985 provisions is that section 857 confers power on the Secretary of State not only to amend or repeal sections 855 and 856 but also, in subsection (2)(b), to make exceptions from the requirements of those sections. (The comparable power in the 1985 Act is only to amend or repeal.)

PART 25: COMPANY CHARGES

CHAPTERS 1 AND 2: COMPANIES REGISTERED IN ENGLAND AND WALES OR IN NORTHERN IRELAND; AND COMPANIES REGISTERED IN SCOTLAND

1161. This Part of the Act provides a scheme for the registration of charges created by a company. Part 12 of the 1985 Act was prospectively repealed and replaced by the 1989 Act, but these amendments and repeals were never brought into force, and they are now themselves being repealed (see Schedule 16).

1162. Chapters 1 and 2 of Part 25 restate Part 12 of the 1985 Act, with a few changes. The principal differences between the restated provisions and those of the 1985 Act are described below.

• Changes have been made to provisions in this Part as a result of other provisions in the Act. So, for example, references to a statutory declaration in sections 403 and 419 of the 1985 Act are replaced by references to a statement in sections 872 and 887. Additionally changes have been made to sections 408 and 423 of the 1985 Act (now sections 877 and 892 respectively) to enable a company to keep its instruments creating charges and its register of charges in a place other than its registered office, bringing these provisions into line with provisions elsewhere in the Act relating to availability of documents for inspection.

• The provisions relating to charges created by an overseas company in sections 409 and 424 of the 1985 Act have not been restated. Instead section 1052 provides a new regulation-making power for the Secretary of State to make provision about the registration of charges over property in the United Kingdom of an overseas company that has registered its particulars with the registrar under section 1046.

• There are no longer to be daily default fines for the offences under this Part of failure to register a new charge under section 860 or 878 (compare sections 399 and 415 of the 1985 Act) and failure to register an existing charge over acquired property under section 862 or 880 (compare sections 400 and 416).

CHAPTER 3: POWERS OF THE SECRETARY OF STATE

Section 893: Power to make provision for effect of registration in special register

1163. This is a new provision, which provides power for the Secretary of State to make an order providing that, if a charge is registered in another register (for example, the register of floating charges to be established under the Bankruptcy and Diligence etc (Scotland) Bill), then the registrar may not register it, but it will be treated as if it had been registered in accordance with the requirements of Part 25. The power may only be exercised if appropriate information-sharing arrangements have been made between the registrar and the person responsible for the other register. This is to ensure that a person searching of the register will have access to information about charges registered in that other register.