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Application by creditor for permission to apply for compensation.
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35.— (1) Subject to subsection (2), a creditor of a transferor in relation to a transfer order may apply to the Court, by motion on notice grounded upon affidavit, for an order permitting the creditor to apply for compensation under this Act.
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(2) An application under subsection (1) may be made only on a date that is—
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(a) after the date on which the affairs of the transferor have been wound up, and
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(b) before the date that is 6 months after the date referred to in paragraph (a).
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(3) On an application under subsection (1), the Court shall order that the creditor be permitted to apply for compensation, if the Court is satisfied that—
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(a) a resolution for the winding-up of the transferor was passed, or an order for its winding-up was made, within 12 months after the making of the transfer order,
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(b) the affairs of the transferor have been wound up,
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(c) any financial obligation of the transferor to the creditor in respect of which the creditor seeks to apply for compensation was undertaken before the making of the transfer order,
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(d) financial support (within the meaning of the Act of 2008) was not provided to the transferor by the State, in the 4 years immediately before the date on which the resolution referred to in paragraph (a) was passed, or the order referred to in that paragraph was made, whichever is the earlier, and
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(e) the dividend that the creditor received on the winding-up of the transferor was less than the dividend that it is likely that the creditor would have received had the transfer order not been made when it was made, and the creditor’s burden in receiving that lesser dividend was, relative to the benefit to the financial stability of the transferor, or the stability of the financial system or the economy, disproportionate having regard to the circumstances of the creditor.
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