Francis Beaufort Palmer.

Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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under sect. 115 of the Companies Act, 1862, or under any order of the Court before
the Court, or before any officer of the Court, or person appointed to take such an
examination (other than the notes of the depositions of a person examined at a
public examination under sect. 8 of the Companies (Winding-up) Act, 1890), shaU
not be placed on the file of proceedings, or be open to the inspection of any creditor,
contributory, or other person, except the official receiver or licxuidator, imless and
until the Coiu't shall so direct, and the Court may from time to time give such
general or special directions as it shall think expedient as to the custody and
inspection of such notes, and the f ui'nishing of copies of or extracts therefrom.

This rule was made in consequence of Standard Gold Mining Co., (1895) 2 Ch. 545.

The files are kept at Room 66, Banki-uptcy Buildings, Carey Street, W.C.

In cases retained by Chitty, North, Stirling, or Kekewich, J., the file is kept by
the Official Receiver at 33, Carey Street.

As to stitching margins in documents to be filed, see Practice Notice of 15th
February, 1893, in Aj)pendix.



In Courts other than High Court.

R. 31 of April, 1892. — In Courts other than the High Court a file of proceedings in
every winding-up matter shall be kept, on which all petitions, affidavits, sum-
monses, orders, proofs, notices, depositions, and other proceedings in the matter
shall be placed and remain of record as far as possible in continuous order.

And see R. 1 of Nov. 1895, supra.



I'm- of file
Board of
Trade and
offi'ial
receiver.



1'y



Inspection of File in all Courts.

R. 32 of April, 1892. — Every person who has been a director or officer of a com-
pany which is being wound up, and every duly authorized officer of the Board of
Trade, shall be entitled, free of charge, and every contributory and every creditor
whose claim or proof has been admitted, shall be entitled on payment of a fee of one
shilling, at all reasonable times, to inspect the file of proceedings (whether in the
High Court or any other Court) and to take copies or extracts from any docu-
ments therein, or to be furnished with such copies or extracts at a rate not exceeding
fourpcnce per folio of seventy-two words.

Tliis must now be read subject to R. 1 of Nov. 1895, supra.

H, 32 of April, 1892. — Where, in the exercise of their functions \mdcr the Acts or
rulf.H, the Board of Tiade or the official receiver require to inspect or use the file of
proceedings in any matter, the registrar shall (unless the file is at the time required



COMMON FORMS AND GENERAL PROCEDUR:^.



23



for use in Court or by him), on request, transmit the file of proceedings to the
Board of Trade or official receiver, as the case may be.



The High Court of Justice.
Companies (Winding-up).

Re .



No.



of



day of



IS-



IS—.



Application for inspection of file of proceedings in this matter.
I appear for .



Form 6.

Application
for inspection
of file (High
Court).



Name of Solicitor .

Address .

If the leave of the Court is required under R. 1 of Nov. 1895, supra, the siunmons
may be framed on the lines of that in Slandard Gold Mining Co., supra.



Eegister of Petitions.



No. of
Petition.



Name of
Company.



Address of

Registered

Olfice.



Description

of
Company.



Date of
Petition.



Petitioner.



Date of

"Winding-up

Order.



Form 7.

Register of
petitions to
be kept in the
Courts.
Form 89 of
1890.



Books to be kept and Eeturns made by Opficees of the Court.

B. 150 of 1890. — In the High Court the chief clerks of the Chancery Division,
and in the district registries of the High Court at Liverpool and Manchester
respectively the district registrars of the High Court, and in a Court other than the
High Coiirt the registrar or other officer of the Court whose duty it is to perform
under direction of the judge the duties which in a County Court are performed by
the registrar, shall keep books according to the forms in the Appendix, and the
particulars given under the different heads in such books shall be entered forthwith
after each proceeding has been concluded.

[In cases before Vaughan Williams, J., for "chief clerks of the Chancery
Division," read "registrar." (See R. 35 (1) of AprH, 1892.]

K. 151 of 1890. — The officers of the Courts whose duty it is to keep the books
prescribed by these rules shall make and transmit to the Board of Trade such
extracts from their books, and shall furnish the Board of Trade with such informa-
tion and returns as the Board of Trade may from time to time require.



Number of

Winding-up

Order.



Number of
Petition.



Date of
Petition.



Date of

■Winding-up

Order.



Dates of Public

Examinations

(if any) .



Liquidator.



Form 8.

Register of
winding-up
orders to be
kept in the
Courts.
Form 88 of
1890.



See rules at foot of Form 7.



24



WINDING-UP BY THE COURT. [ChAP. II.



EeQUIEEMENTS as to PArER AND PRINTING.

E. 7 of April, 1892. — All proceedings to which these rules apply shall be written
or printed, or partly -written and partly printed, on paper of the size of 13 inches in
length and 8 inches in breadth, or thereabouts ; but no objection shall be allowed
to any proof, affidavit, or proxy on account only of its being written or printed on
paper of other size.

This rule only applies to cases before Vaughan Williams, J.

Winding-up petitions are, however, accepted if written or printed on foolscap,
breadthwise.

lEBEGULABITy AND EXTENSION OE TiME.

R. 177 of 1890. — (1) No proceeding under the Acts shall be invalidated by any
formal defect or by any irregularity, unless the Court before which an objection is
made to the proceeding is of opinion that substantial injustice has been caused by
the defect or irregularity, and that the injustice cannot be remedied by any order
of the Court.

(2) No defect or irregularity in the appointment or election of a receiver, liqui-
dator, or member of a committee of inspection shall vitiate any act done by him in
good faith.

K. 176 of 1890. — The Court may, in any case in which it shall see fit, extend or
abridge the time appointed by these rules or fixed by any order of the Court for
doing any act or taking any proceeding.

The time for filing affidavits in opposition to a petition, or in reply, fixed by the
Rules of March, 1893, may, but will not as of course, be extended. Per Romer, J.,
in Vnlquia, LcL, 40 S. J. 621.

K. S. C. 1883, 0. LIV. r. 4e. — In case of summonses for time only, the summons
may be served on the day previous to the return thereof.

It is not necessary to draw up the order unless the Court or judge otherwise
directs. R. S. C. 1883, O. 52, r. 14.



Form 9.

Notice of
motion
(Vaughan
^Yilliams, J.



Applications in Court.

In High Court.

In tlie High Court of Justice. No. — of 189—.

Companies (Winding-up).
Mr. Justice Vaughan Williams.

In the matter of the Companies Acts, 1862 to 1890,

and

In the matter of [full name of company^ Company, Limited.

Take notice that the Court will be moved on day, the day

of , 189—.

\_If the "motion is to he heard at a specialli/ appointed hour, state the
fact ; as : at eleven of the clock in the forenoon of that day], or so
soon thereafter as counsel can bo heard.

[//ere state on tvhose behalf the motion is to he made ; as :] by Mr. A.,
as counsel on tlie part c)f the [off recr and] liqr of the above-named coy,
that ^Jiere stale the ohjcct of the 7notion'\.



COMMON FORMS AND GENERAL PROCEDURE. 25

\If special leave has been obtained to give the notice for a non-motion
day or for a motion day short of the ordinary two clear days after service,
or for a special hour and place, state the fact ; as ;] And take also notice
that special leave [_see, as to necessity of mentioning this, Dawson v.
Beeson, 22 Ch. Div. 504] to give this [short] notice of motion for the
day (and hour and place) afsd has been this day obtained from his /

lordship, INIr. Justice \_or as the case may be'].

Dated this day of , 189—.

B. C, of ,

Solor for the [off recr and] lic[r of the above-
named coy [or as the case may be'].
To [insert names of solor s or parties to ivhom the notice is to be
given']. See E. S. C. 1883, App. B. No. 11.



As to additional title in case of building and industrial societies, see notes to How applica-
Form 1. tions to be

E. 5 of April, 1892. — Applications in Court, other than petitions, shall be made by ^'^ ®'
motion, notice of which shall be served on every person against whom an order
is sought not less than two clear days before the day named in the notice for hear-
ing the motion. Applications in Chambers, other than ea: jsoj/Yc applications, shall
be made by summons.

But in misfeasance proceedings eight days' notice is required. R. 79 of 1890.

As to petitions, see Chap. III.

Practice Directions of May, 1892, pro^^dde that — A copy of the notice of every
motion before the judge must be left at the office of the Registrar [Room 66, Bank-
ruptcy Buildings, Carey Street], not later than two days before the day named for
hearing the motion. A list of the motions will be prepared, and they will be
taken in the order in which they appear in such list.

K. 3 of April, 1892. — (1.) The following matters and applications shall be heard Matters in
before the judge of the High Court in oj)en Court : — High Court

(a) Petitions. J° ComT'*^

(b) Appeals from the Board of Trade and Official Receiver to the High Court.

(c) Applications by the Board of Trade under sect. 15 of the Companies (Wind-

ing-up) Act, 1890.

(d) Applications for the committal of any person to prison for contempt.

(e) Such matters and applications as the judge may from time to time by any

general or special orders direct to be heard before him in open Court.

(2.) Examinations of persons summoned before the High Court under sect. 115
of the Companies Act, 1862, shall, unless the judge of the High Court shall other-
wise direct, be held befoi-e the registrar in Chambers.

(3.) Every other matter or application in the High Court under the Acts to which
the rules apply may be heard and determined in Chambers.

E, 4 of April, 1892. — Any matter or application in Coui-t may be adjourned to be Adjournment
heard and dealt with in Chambers. to Chambers.

E. 5 of 1890. — In Courts other than the High Court the following matters and Matters not in
applications to the Court shall be heard in open Court : — High Court

(a) Petitions. *« ^^ ^^f""^
^ ' . . m Court.

(b) Public examinations.

(c) Applications under sect. 167 of the Companies Act, 1862.

(d) Applications to rectify the register.

(e) Appeals from the official receiver and Board of Trade.



26



WINDING-UP BY THE COURT. [ChAP. II,



(f ) Appeals from any decision or act of the liquidator.

(g) Applications relating to the admission or rejection of proofs.

(h) Proceedings under sect. 10 of the Companies (Winding-up) Act, 1890.

As to adjournments from Court to Chambers, see E.. 6 of 1890 (notes to Form 10).



Form 10.

Summons
(general).
Vaughan
Williams, J.
Form 11 of
AprQ, 1892.



Applications nsr Chambers.

In High Court.

In the Higli Court of Justice.

Companies (Winding-up).

Mr. Justice Yauglian "Williams.

In tlie matter of the Companies Acts, 1862 to 1890,

and
In the matter [insert name of company~\.

Let [name of respo7ident^ attend at the office of the registrar at the

Bankruptcy Buildings, Carey Street, London, on the day of

189 — , at o'clock in the noon, on the hearing of an

applicon of [?mme and description of applicant^ for an order that [^state
object of application^.

Dated the day of 189—.

Seal.

This summons was taken out by of , solors for .

Note. — If you do not attend, either in person or by your solor, at
the time and place above mentioned, such order will be made, and pro-
ceedings taken as the judge (or registrar) may think just and expedient.

As to additional title in case of building or industrial society, see notes to Form 1.
Asreo-ardsthe R- 5 of April, 1892.— Applications in Chambers, other than ex parte applications,
High Court. shall be made by summons.

Preparation Many applications in Chambers are ex parte, in which case, after the word "Le+,"

and issuing of at the commencement, insert the words " all parties concerned."
summonses. jf ^j^g summons is not ex parte, the following rule applies : —

E. S. C. 1883, 0. LIV. r. 10. — A summons . . . shall be addressed to all the
parties on whom it is to be served.

Before the final note, therefore, add, " To l_i>isert the oiames of the solicitors,

or persons (if any) to be served, e.g., "the official i-eceiver and liquidator of the

above-named company, and Mr. , his solicitor"].

R. S. C. 1883, 0. LIV. r, 9. — In every cause or matter where any party thereto
makes any application at Chambers, either by way of summons or otherwise, he
shall be at liberty to include in one and the same application all matters upon which
he then desires the order or directions of the Court or judge.

E. 9 of April, 1892. — Every summons in a winding-up matter in the High Court
to which these rules apply shall be prepared by the applicant or his solicitor, and
issued from the office of the registrar. A summons, when sealed, shall be deemed
to be is.sucd. The person obtaining the summons .shall leave in the registrar's office
a duplicate which shall be stamped with the prescribed stamp and filed.

Two forms of summons must be filled up, one of which must bear an impressed



COMMON FORMS AND GENERAL PROCEDURE. 27

companies winding-up stamp {3s. for an ordinary summons ; lO*. for an originating
summons). Tliis stamp is impressed at Room G, Royal Courts of Justice.

The two forms are then taken to Room 66, Bankruptcy Buildings, where the
stamped form is sealed, left, and filed (see si(pra). The other form is sealed (see
R. 8 of April, 1892), and delivered back to the applicant.

K. S. C. 1883, 0. LIV. r. 3. — Summonses shall not be altered after they are sealed
except upon application at Chambers.

As no time is limited by the winding-up rules with regard to the time for return
of the summons, the following rule must be followed : —

E. S. C. 1883, 0. LIV. r. 4e. — Every summons, not being an originating summons,
to which an appearance is reqvdred to bo entered (as to which see 0. LIV. r. 4f),
shall be served two clear days before the return thereof, unless in any case it shall
be otherwise ordered — e.(/., nndev R. 93 of 1890 — provided that in case of summonses
for time only, the summons may be served on the day previous to the return
thereof.

Where an oriffinating summons is required {e.g., in case of transfer of winding-up
to the High Coui't from another Court, or the first application in a voluntary
winding-up), the form set out in Section II. may be used.

As to the matters which maybe heard iu Chambers, see R. 3 of April, 1892, notes
to Form 9, supra.

Service.

R. S. C. 1883, 0. LXVII., r. 2. — All writs, notices, pleadings, orders, summonses,
warrants, and other documents, proceedings, and written communications in respect
of which personal service is not requisite, shall be sufificieutly served if left within
the prescribed hours at the address for service of the person to be served as defined
by Orders IV. and XII., with any person resident at or belonging to such place.

E. S. C. 1883, 0. LXIV., r. 11. — Service of pleadings, notices, summonses, orders,
rules, and other proceedings, shall be effected before the hour of six in the afternoon,
except on Satxu'days, when it shall be effected before the hour of two in the after-
noon. Service effected after six in the afternoon on any week-day except Saturday
shall, for the purpose of computing" any period of time subsequent to such service,
be deemed to have been effected on the following day. Service effected after two
in the afternoon on Saturday shall for the like purpose be deemed to have been
effected on the following Monday.

As to the service of, and ajipearance to originating summonses, see notes to
Forms 751, 752 ; and see, as to service of notices, 2^ost, p, 29 ; and as to serving
notice of evidence filed with simimons, see p. 927.

Hearing.

R. 4 of April, 1892. — Subject to the provisions of the Acts and rules, the registrar Jurisdiction
may, under the general or special directions of the judge, hear and determine any of registrar,
application or matter in the High Court which, under the Acts and rules, may be
heard and determined in Chambers. Any matter or application in Chambers may
at any time be adjourned from Chambers to be heard by the judge of the High
Court in Court, and any matter or application in Coiu't may be adjourned to be
heard and dealt with in Chambers.

[When appointments are adjourned by the registrar for a week or ten days, (Src,
without any specific day being named, parties must attend at Room 66, and get
a further appointment, otherwise the case will not appear in the list.]

R. S. C. 1883, 0. LIV., also provides as follows: — 5. Where any of the parties to Proceeding"
a summons fail to attend, whether upon the return of the siimmons, or at any time ex parte.
appointed for the consideration or further consideration of the matter, the judge



28



WINDING-UP BY THE COURT. [ChAP. II.



actions.



may proceed ex parte, if, considering" the nature of the case, he think it expedient
so to do ; no affidavit of non-attendance shall be required or allowed, but the judge
may require such evidence of ser\'ice as he may think just.

6. "Where the judge has proceeded ex parte, such proceeding shall not in any
manner be reconsidered in the judge's Chambers, unless the judge shall be satisfied
that the party failing to attend was not guilty of wilful delay or negligence ; and
in such case the costs occasioned by his non-attendance shall be in the discretion of
the judge, who may fix the same at the time, and direct them to be paid by the
party or his solicitor before he shall be permitted to have such proceeding recon-
sidered, or make such other order as to such costs as he may think just.

7. Where a proceeding in Chambers fails by reason of the non-attendance of
any party, and the judge does not think it expedient to proceed ex parte, the judge
may order such an amount .of costs (if any) as he shall think reasonable to be paid
to the party attending by the absent party or by his solicitor personally.

S. Where matters in respect of which summonses have been issued are not
disposed of upon the return of the summons, the party shall attend from time to
time without further siunmons, at such time or times as may be appointed for the
consideration or further consideration of the matter.
Transferred R. 14 (2) of April, 1892.— Where any action brought by or against a company

against which a winding-up order has been made is transferred to the judge of the
High Court, the registrar may, under the general or special directions of the judge,
hear, determine and deal with any application, matter or proceeding which, if the
action had not been transferred, would have been determined in Chambers.

Rr. 1 and 2 of August, 1892, are as follows : — 1. Where any action is transferred
to the judge who for the time being exercises the jurisdiction of the High Coui-t to
wind up companies, the registrar under the Companies (Winding-up) Rules may,
subject to the general or special du-ections of the judge, hear, determine, and deal
with any application, matter, or proceeding which, if the action had not been
transferred, would have been determined in Chambers.

2. In every cause or matter within the jurisdiction of the judge, whether by
virtue of the Act or by transfer or otherwise, the registrar shall, in addition to his
powers and duties tmder the Companies (Winding-up) Rules, 1890 and 1892, have
aU the powers and duties of a master, registrar, chief clerk, or taxing master.



In Courts other than High Court.

E. 6 of 1890. — Subject to the provisions of the Acts and rules, any matter or
application in a Court other than the High Court may at any time, if the judge
thinks fit, be adjourned from Chambers to Court or from Court to Chambers ; and
if all the contending parties require any matter or appKcation to be adjourned
from Chanibors into Court it shall be so adjourned.

E. 2 of 1890 contains {inter alia) the following provisions : — In the application of
these rules to any Court other than the High Court, the registrar may, under the
general or special directions of the judge, hear and determine any application or
matter which under the Acts and these rules may be determined in Chambers.

"Registrar," as applied to a County Court, includes, where there are joint
registrars, cither of such registrars, or a deputy registrar, and as applied to any
Court other than the High Court, means and includes the officer of the Court
whose duty it is to exercise in relation to a winding-up the functions which in
the High Court are exercised by a registrar or chief clerk.



COMMON FORMS AND GENERAL PROCEDURE. 29



Sealing Process.

E. 8 of April, 1892. — All orders, summonses, petitions, warrants, process of any-
kind (including- notices when issued by the Court), and oflBco copies in any winding-
up matter to which these rules apply, shall be sealed.

This rule only applies in cases before Vaughan Williams, J.



Service and Execution of Process.
Where no special mode directed.

B. 21 of 1890, — All notices and other documents for the service of which no
special mode is directed may be sent by prepaid post letter to the last-knovm address
of the person to be served therewith ; and the notice or document shall be con-
sidered as served at the time that the same ought to be delivered in the due course
of post by the post office, and notwithstanding the same may be returned by the
post office.

This rule is probably applicable to many cases in which at present it is not
utilised.

In County Court.

E. 20 of 1890.— (1) It shall be the duty of the high bailiff of a County Court to
serve such orders, summonses, petitions, and notices as the Court may require him
to serve ; to execute warrants and other process ; to attend any sittings of the
Court (but not sittings in Chambers) ; and to do and perform all such things as may
be required of him by the Court.

(2) But this rule shall not be construed to require any order, summons, petition,
or notice to be served by a bailiff or officer of the Court which is not specially by
the Acts or rules required to be so served, unless the Court in any particular pro-
ceeding by order specially so directs.

\_Reference to Record and Title, as {71 Foi-ms 1 to 5, and ftotes.^ Form 11.

I, A. B., of [place of residence, and description or addition^ make ;:; '., ~
' ' L-" -^ ' ^ -I Formal parts

oatli and say as follows : — of affidavit by

1. On the day of , I, &c. o^<^ P^^'^o^-

[Here set out the statemetits.']

Sworn, &c.

This afft is filed on the part and behalf of the liqr of the above-
named coy [or as the case may be~\.

See notes to Form 12.

For forms of affidavit of service of petition, see Chap. IV. p. 64.

[Reference to Record and Title, as in Forms 1 to 5, and fiotes-l Form 12.

We, A. B., of [place of residence, and description or addition^, and formal parts
C. D., of [place 0/ 7-esidence, and description or addition^ severally make of affidavit
oath and say as follows : — persona

1. On the day, &c.

2. We have not, &c.



30



WINDING-UP BY THE COURT. [ChAP. II.



Or, severally make oatli and say : —
And first, I, the sd A. B., for myself, say as follows : —

1. I did, &c.

2. When, &c.

And I, the sd 0. D., for myself, say as follows: —

3. On the, &c.

4. I have not, &c.

And we, the sd A. B. and 0. D., further severally say as follows : —

5. "We have not, &c.

6. Notwithstanding, &c.
Sworn, &c.

This affl is filed, &c.

Stamp on affidavit, impressed or adhesive, 2s. (except in proof of debt). " For
taking affidavit, or an affirmation or attestation upon honour in heu of an affidavit
or a declaration, except for proof of debts, and except declaration by a shorthand
writer under Rule 16 (Form 6), for each pei'son making the same," Is. (Jd. (impressed
or adhesive) . ' ' And in addition thereto, for each exhibit referred to therein and
required to be marked," Is. (what stamp not stated). This only apphes where
affidavit, &c., taken by officer of the Court.



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 11 of 134)