Part 10 — Dissolution Division 1 Cancellation of Incorporation
294 Disclaimer
consists of land of any tenure burdened with onerous covenants, of
shares or stock in companies, of unprofitable contracts, or of any
other property that is unsaleable or not readily saleable, by reason
of its binding the possessor thereof to the performance of any
onerous act, or to the payment of any sum of money, the liquidator
of the company, notwithstanding that the liquidator has
endeavoured to sell or has taken possession of the property or
exercised any act of ownership in relation thereto, may, with the
permission of the Court and subject to this section, by writing
signed by the liquidator, at any time within 12 months after the
commencement of the winding-up or any extended period allowed
by the Court, disclaim the property.
(2) Notwithstanding subsection (1), if any such property has not
come to the knowledge of the liquidator within one month after the
commencement of the winding-up, the power under this section of
disclaiming the property may be exercised at any time within 12
months after the liquidator has become aware thereof or any
extended period allowed by the Court.
(3) The disclaimer operates to determine, as from the date of
disclaimer, the rights, interests and liabilities of the company, and
the property of the company, in or in respect of the property
disclaimed, but does not, except so far as is necessary for the
purpose of releasing the company and the property of the company
from liability, affect the rights or liabilities of any other person.
(4) The Court, before or on granting permission to disclaim, may
require such notices to be given to persons interested, and impose
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such terms as a condition of granting permission, and make such
other order in the matter as the Court thinks just.
(5) The liquidator is not entitled to disclaim any property under
this section in any case where an application in writing has been
made to the liquidator by any persons interested in the property
requiring the liquidator to decide whether the liquidator will or will
not disclaim, and the liquidator has not, within a period of 28 days
after the receipt of the application or a further period allowed by
the Court, given notice to the applicant that the liquidator intends to
apply to the Court for permission to disclaim, and, in the case of a
contract, if the liquidator, after an application, does not within that
period or further period, disclaim the contract, the company shall
be deemed to have adopted it.
(6) The Court may, on the application of any person who is, as
against the liquidator, entitled to the benefit or subject to the
burden of a contract made with the company, make an order
rescinding the contract on any terms as to payment by or to either
party of damages for the non-performance of the contract, or
otherwise as the Court thinks just, and any damages payable under
the order to any such person may be proved by the person as a debt
in the winding-up.
(7) The Court may, on an application by any person who either
claims any interest in any disclaimed property or is under any
liability not discharged by this Act in respect of any disclaimed
property, and on hearing any such persons as it thinks fit, make an
order for the vesting of the property in or the delivery of the
property to any persons entitled thereto, or to whom it may seem
just that the property should be delivered by way of compensation
for such liability as aforesaid, or a trustee for the person, and on
such terms as the Court thinks just, and on a vesting order being
made, the property comprised therein vests accordingly in the
person therein named in that behalf without any conveyance or
assignment for the purpose.
(8) Notwithstanding subsection (7), if the property disclaimed is of
a leasehold nature, the Court shall not make a vesting order in
favour of any person claiming under the company, whether as
under-lessee or as mortgagee by demise, except on the terms of
making that person
(a) subject to the same liabilit ies and obligations as those to
which the company was subject under the lease in respect of
the property at the commencement of the winding-up, or
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(b) if the Court thinks fit, s ubject only to the same liabilities and
obligations as if the lease had been assigned to that person at
that date,
and in either event, if the case so requires, except as if the lease had
comprised only the property comprised in the vesting order, and
any mortgagee or under-lessee declining to accept a vesting order
on those terms is excluded from all interest in and security on the
property, and, if there is no person claiming under the company
who is willing to accept an order on those terms, the Court may
vest the estate and interest of the company in the property in any
person liable, either personally or in a representative character, and
either alone or jointly with the company, to perform the lessee's
covenants in the lease, freed and discharged from all estates,
encumbrances and interests created therein by the company.
(9) Any person injured by the operation of a disclaimer under this
section shall be deemed to be a creditor of the company to the
amount of the injury and may accordingly prove the amount as a
debt in the winding-up.
RSA 2000 cC-21 s294;2014 c13 s21