Commentary on Sections Inventory and management plan
38.Section 17(1) places an obligation on judicial factors to compile and send to the Accountant an inventory of the property comprising the factory estate, within 6 months of appointment. When sending the inventory to the Accountant, the judicial factor must also send any additional documents specified in rules of court. Subsections (2) and (3) set out the process for review of the inventory by the Accountant, and subsequent modification and approval. When the inventory has been approved, both the judicial factor and the Accountant must sign it, and the inventory is then treated as a definitive statement of the property within the factory estate as at the date the judicial factor was appointed. However, if additional information is discovered after that date, then under subsection (5) the judicial factor and the Accountant may take that into account in their dealings with the factory estate.
39.Section 18(1) requires judicial factors to send to the Accountant a plan setting out how the judicial factor intends to hold, manage, administer and protect the estate. The plan must be sent within 6 months of the date on which the judicial factor is appointed, and must be accompanied by any additional documents specified in rules of court.
40.Subsections (2) and (5) set out the process for review of the plan by the Accountant, and subsequent modification or approval. Under subsection (2), the Accountant must approve a plan submitted by a judicial factor, either without modification or subject to modifications specified by the Accountant. Subsection (3) allows the Accountant to request any further information from the judicial factor prior to determining whether to require modifications to a plan. If the Accountant has required modifications under subsection (2), then under subsection (4) the Accountant must require the judicial factor to resubmit the plan with those modifications made. Subsection (4) also allows the judicial factor to make their own modifications, in addition to those required by the Accountant, before submitting the plan. The effect of subsection (5) is that, where a plan has previously been modified and resubmitted and the Accountant requires further modification, the Accountant does not need to require the judicial factor to resubmit the plan. In such cases, subsection (8)(a) places the judicial factor under a duty to administer the estate in accordance with directions issued by the Accountant.
41.If a management plan is approved by the Accountant with no further modifications required, then under subsection (6) the judicial factor must review the plan at least annually, and at other times on the direction of the Accountant, and may modify the plan with the approval of the Accountant. In granting that approval the Accountant may specify further modifications that must be made. If the judicial factor does not make those modifications then under subsection (8)(b) the judicial factor must manage the estate in accordance with the directions of the Accountant. Subsection (7) requires the judicial factor to administer the estate in accordance with an approved plan. Subsection (9) places a reporting duty on the judicial factor in relation to dealings with the estate in accordance with the plan. Subsection (10) provides for references in this section to “holding, managing, administering and protecting the estate” to apply to the extent that the individual judicial factor is required to perform those actions by virtue of the interlocutor appointing the judicial factor and any subsequent variation made to the judicial factor’s duties by the court.