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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provisionally or otherwise, he may, if satisfied that the nature of the estate or busi- point special
ness of the company, or the interests of the creditors Or contributories g'enerally, manager,
require the appointment of a special manager of the estate or business of the p. 107
company other than himself, apply to the Court to, and the Coui't may on such
application, appoint a special manager thereof during such time as the Court may
direct, with such powers, including any of the powers of a receiver or manager, as
may be entrusted to him by the Court.

(2.) The special manager shall give such security and account in such manner as
the Board of Trade direct.

(3.) The special manager shall receive such remuneration as may be fixed by
the Court.

6. — (1 .) When the Court has made an order for winding-up a company the official Meeting of
receiver shall simimon separate meetings of the creditors and contributories of the creditors,
company for the purpose of — pp_ 172 190

[a) determining whether or not an application is to be made to the Coiu-t for
appointing a liquidator in the place of the official receiver ; and

{b) determining whether or not an application is to be made to the Court for the
appointment of a committee of inspection to act with the liquidator, and
who are to be the members of such committee if appointed.



846



Appendix A.



Statement of
company's
affairs .
p. 153



Ileport on
Aviiiding-up
and proceed-
ings there-
upon.

pp. 171, 624



The Court may make any appointment and order required to give effect to any
such determination, and if there is a difference between the detei-minations of the
meetings of the creditors and contributories in respect of any of the matters men-
tioned in the foregoing provisions the Court shall decide the difference and make
such order thereon as the Court may think fit.

(2.) The provisions of the First Schedule to this Act shall, subject to such modifi-
cations as may be made therein by general rules, apply to any meeting summoned
in pursuance of this section.

(o.) In case a liquidator is not appointed by the Coui-t the official receiver shall
be the liquidator of the company.

7. — (1.) Wliere the Court has made an order for winding-up a company, there
shall be made out and submitted to the official receiver a statement as to the affairs
of the company in the prescribed form, verified by affidavit, and showing the par-
ticulars of the assets, debts, and liabilities of the company, the names, residences,
and occupations of the creditors of the company, the securities held by them
respectively, the dates when the securities were respectively given, and such
further or other information as may be prescribed or as the official receiver may
require.

(2.) The statement shall be submitted and verified by one or more of the persons
who are at the time of the winding-up order the directors and by the person who
is at that time the secretary or other chief officer of the company, or by such of the
persons being or having been directors or officers of the company or having taken
part in the formation of the company at any time within one year before the order
for winding-iip the company, as the official receiver, subject to the direction of the
Court, may require to submit, and verify the same.

(3.) The statement shall be submitted within fourteen days from the date of
the order, or within such extended time as the official receiver or the Court may for
special reasons appoint.

(4.) Any person making or concurring in making the statement and affidavit
required by this section shall be allowed, and shall be paid by the official receiver,
out of the assets of the company, such costs and expenses incurred in and about the
preparation and making of such statement and affidavit as the official receiver may
consider reas(mable, subject to an appeal to the Court.

(5.) If any person, wdthoiit reasonable excuse, makes default in complying- with
the requirements of this section, he shall be liable to a fine not exceeding ten
pounds for every day during which the default continues.

(G.) Any person stating himself in writing to be a creditor or contributory of
the company shall be entitled by himself or by his agent at all reasonable times,
on payment of the prescribed fee, to inspect the statement submitted in pursuance
of this section, and to a copy thereof or extract therefrom. But any person untruth-
fulh' so stating himself to be a creditor or contributory shall be guilty of a contempt
of Court, and shall be punishable accordingly on the application of the liquidator
or of the official receiver.

8. — (1.) Where the Court has made an order for winding-up a company, the
official receiver shall, as soon as practicable after receipt of the statement of the
company's affairs, submit a preliminary report to the Court — -

(a) as to the amount of cajjital issued, subscribed, and paid up, and the estimated

amount of assets and liabilities ; and

(b) if the company has failed, as to the causes of the failure ; and

(c) whether in his opinion further inquiry is desirable as to any matter relating to

the promotion, formation, or failm-e of the company, or the conduct of the
business thereof.

(2.) The official receiver may also, if he thinks fit, make a further report, or
further reports, stating the manner in which the company was formed and whether
in his opinion any fraud has been committed by any person in the promotion or
formation of the company or by any director or other officer of the company in
relation to the company since tlio formation thereof, and any other matters which
in his opinion it is desii'able to bring to the notice of the Court.

{'.',.) The Court may, after consideration of any such report, direct that any
person wlio has taken any part in the promotion or formation of the company, or
has liecn a director or officer of the company, shall attend before the Court on a day
apiiointod by the Court for that purpose, and be publicly examined as to the jiromo-
tioii or formation of the company, or as to tlic conduct of the business of the company,
or as to his conduct and dealings as director or officer of the company.

(■1.) The official receiver shall take part in the examination, and for that purpose
may, if specially authorized by the Board of Ti-ado in that behalf, employ a solicitor
with or without counsel.



The Companies (Winding-up) Act, 1890. Act of 1890 847

(5.) The liquidator where the official receiver is not the liquidator and any creditor
or contributory of the company may also take part in the examination either personally
or by solicitor or counsel.

(6.) The Court may jjut such questions to the person examined as to the Court
may seem expedient.

(7.) The person examined shall bo examined on oath, and it shall be his duty
to answer all such questions as the Coiu-t may put or allow to be put to him. The
person examined shall at his own cost, prior to such examination, bo furnished with
a copy of the official receiver's report, and shall also at his own cost be entitled to
employ at such examination a solicitor with or without counsel, who shall be at
liberty to put such questions to the person examined as the Court may deem
just for the purpose of enabUng that person to explain or qualify any answers
priven by him. Provided always, that if such person is, in the opinion of the
Court, exculpated from any charges made or suggested against him, the Court
may allow him such costs as the Court in its discretion may think iit. Notes of
the examination shall be taken down in writing, and shall be read over to or by, and
signed by, the pei'son examined, and may thereafter be used in evidence against him.
They shall also be open to the inspection of any creditor or contributory of tlie
company at all reasonable times.

(8.) The Court may, if it thinks fit, adjourn the examination from time to time.

(9.) A public examination under this section may, if the Court so diiects, and
subject to g-eneral rules, be held before any judge of Cou^nty Courts, or before any
officer of the Supreme Court, being an official referee, master, registrar in bank-
ruptcy, or chief clerk, or before any district registrar of the High Court named for
the purpose by the Lord Chancellor, or in the case of companies being wound up
by a Palatine Court, before a registrar of that Court, and the powers of the Court
under sub-sections six, seven, and eight of this section may (except as to costs) be
exercised by the person before whom the examination is held.

9. — (I.) A committee of inspection appointed in pursuance of this Act shall Committee of
consist of persons being creditors or contributories of the company or persons holding inspection,
general powers of attorney from such persons in such proportions as may be agreed pp_ 192 219
on by the meetings of creditors and contributories or as, in case of difference, may
be determined by the Court.

(2.) The committee of inspection shall meet at such times as thcj" from time to
time appoint, and, failing such appointment, at least once a mouth ; and the liqui-
dator or any member of the committee may also call a meeting of the committee as
and when he thinks necessary.

(3.) The committee may act by a majority of their members present at a meeting-,
but shall not act unless a majority of the ct)mmittee are present at the meeting.

(4.) Any member of the committee may resign his office by notice in writing
signed by bun, and delivered to the liquidator.

(5.) If a member of the committee becomes bankrupt, or compounds or arranges
with his creditors, or is absent from five consecutive meetings of the committee
without the leave of those members of the committee who together with himself
represent the creditors or contributories as the case may be, his office shall thereupon
become vacant.

(6.) Any member of the committee representing creditors may be removed by an
ordinary resolution at any meeting of creditors of which seven days' notice has
been given, stating the object of the meeting. Any member of the committee
representing contributories may be removed by an ordinary resolution at any meetmg
of contributories, of which seven days' notice has been given stating the object of
the meeting.

(7.) On a vacancy occurring in the office of a member of the committee, the
liquidator shall forthwith summon a meeting of creditors or of contributories, as the
case may require, for the pm-pose of filling the vacancy, and the meeting may, by
resolution, re-appoint the same or ajjpoint another creditor or contributory to fill the
vacancy.

(8.) The continuing members of the committee, provided there be not less than
two such continuing members, may act notwithstanding any vacancy in their body.

(9.) If there be no committee of inspection, any act or thing or any direction or p. 201
permission by this Act authorized or required to be done or given by the committee
may be done or given by the Board of Trade on the apphcation of tlie liquidator.

10. — (I.) Where in the course of the winding-up of a company under the Com- Power of
panics Acts it appears that any person who has taken part in the formation or Court to assess
promotion of the company, or any past or present director, manager, liquidator, or damages
other officer of the company, has misapplied or retained or become liable or account- against de-
able for any moneys or property of the company, or been guUty of any misfeasance linquent



848



Appendjx a.



directors,
officers, and
promoters.
pp. 539, 608



Payment of
money into
Bank of
England,
p. 266



pp. 230, 592



Powers (jf
liquidator.
yV- 201. 206,
274, 556



or breach of trust in relation to the company, the Court may, on the application of
the official receiver, or of the liquidator of the company, or of any creditor or con-
tributory of the company, examine into the conduct of such joromoter, director,
manager, liquidator, or other officer of the company, and compel him to repay any
moneys or restore any property so misapplied or retained, or for which he has
become liable or accountable, together with interest after such rate as the Court
thinks just, or to contribute such sums of money to the assets of the company by
way of compensation in respect of such misapplication, retainer, misfeasance, or
breach of trust as the Court thinks just.

(2.) The provisions of this section shall apply in the winding-up of any company
under the Companies Acts, whether the same is being wound up by or subject to
the supervision of the Court or is being wound up voluntarily, and whether the
winding-up commenced before or after the passing of tliis Act, and notwith-
standing that the offence is one for which the offender may be criminally respon-
sible.

{Amended by C. [W. U.) Act, 1893.)

11. — (1.) An account, called the Companies Liquidation Account, shall be kept
by the Board of Trade with the Bank of England, and all moneys received by the
Board of Trade in respect of proceedings under this Act shall be paid to that
account.

(2.) Every liquidator of a company which is being wound up by order of the
Court shall, in such manner and at such times as the Board of Trade, with the
concurrence of the Treasury, direct, pay the money received by him to the Com-
panies Liquidation Account at the Bank of England, and the Board of Trade shall
furnish him with a certificate of receipt of the money so paid.

(3.) Provided that, if the committee of inspection satisfy the Board of Trade that
for the purpose of carrying on the business of the company or of obtaining advances,
or for any other reason, it is for the advantage of the creditors or contributories
that the liquidator should have an account witli any other bank, the Board of
Trade shall, on the application of the committee of inspection, authorize the
liquidator to make his payments into and out of such other bank as the com-
mittee may select, and thereupon those payments shall be made in the prescribed
manner.

(4.) If any such liquidator at any time retains for more than ten days a sum
exceeding fifty pounds, or siich other amount as the Board of Trade in any parti-
cular case authorize him to retain, then, unless he explains the retention to the
satisfaction of the Board of Trade, he shall pay interest on the amount so retained
in excess at the rate of twenty pounds per centum per annum, and shall be liable to
disallowance of all or such part of his remuneration as to the board shall seem
just, and to be removed from his office by the board, and shall be liable to pay any
expenses occasioned by reason of his default.

(5.) All payments out of money standing to the credit of the Board of Trade in
the Companies Liquidation Account shall be made by the Bank of England in the
pi'escribed manner.

(6.) No liquidator of a company which is being wound up by order of the
Court shall pay any sums received by him as liquidator into his private banking
account.

12.— (1.) The liquidator of a company which is being wound np by the Court
raav, with the sanction either of the Court or of the committee of inspection, carry
on the business of the company, or bring or defend any legal proceeding in the
name and on behalf of the company, or exercise any of the powers conferred by
section one hundred and fifty-nine or section one hundred and sixty of the Com-
panies Act, 1S()2.

(2.) Tlie li(piidator of any such company may, without the sanction of the Court
or of the committee of inspection, exercise any of the other powers conferred on the
liquidator by section ninety-five of the Companies Act, 18G2.

(3.) The exercise by the liquidator of the powers referred to in this section
shall be subject to the control of the Court, and any creditor or contributory may
apply to the Court with respect to any exercise or proposed exercise of any of
those powers.

(4.) The liquidator of a company which is being wound up by order of the
Court may, with the sanction cither of the Court or of the committee of inspection,
onqiloy a solicitor or other agent to take any proceedings or do any business which
the ii(iiiidator is unable to take or do himself. The sanction aforesaid must be a
sanction obtained beforo the employment, except in cases of urgency, and in such
cases it must be shown that no undue delay took place in obtaining the sanction.



The Companies (Winding-up) Act, 1890. Act of 1890 849

13. General rules may be made for requii-ing or enabling all or any of the powers Delegation to
and duties conferred and imposed on the Court by sections ninety-one, ninety-eight, liquidator of
ninety-nine, one hundred, one hundred and two, and one hundred and seven of the certain
Companies Act, 1862, to be exercised or performed by the liquidator as an officer of powers of
the Court, and subject to the control of the Court. Court.

Provided that the liquidator shall not, without the special leave of the Court, p. 347
rectify the register of members, and shall not make any call without either the
special leave of the Court or the sanction of the committee of inspection.

14. Where a company is being wound up voluntarily or subject to the super- 27^P\
vision of the Court, the official receiver attached to the Court having jurisdiction oracial

to wind up the company may present a petition that the company be wound up by I'cceiver to
the Coiirt, and thereupon, if the Court is satisfied that the voluntary winding-up 'ipply as to
or winding-up subject to supervision cannot be continued with due regard to the voluntary
interests of the creditors or contributories, it may make an order that the company ^^"'i^i^^g^T'
be wound up by the Court. PP- "**' ^'^•

15. — (1.) If the winding-up of a company is not concluded within one year after Information
its commencement, the liquidator of the company shall, at such intervals as may as to pending
be pi-escribed, until the winding-up is concluded, send to the registrar of joint liquidations,
stock companies a statement in the prescribed form and containing the prescribed pp_ 244 628
particulars with respect to the proceedings in and position of the liquidation. Any 687
person stating himself in writing to be a creditor or contributory of the company
shall be entitled, by himself or by his agent, at all reasonable times, on payment
of the prescribed fee, to inspect the statement submitted iu pursuance of this
section, and to a copy thereof, or extract therefrom. But any person untruthfully
HO stating" himself to be a creditor or contributory shall be guilty of a contempt of
Court, and shall be punishable accordingly on the application of the liquidator or of
the official receiver.

(2.) If a liquidator makes default in complying with the requirements of this
section he shall be liable to a fine not exceeding fifty pounds for each day during
which the default continues.

(3.) If it appears from any such statement or otherwise that any liquidator of a P- 259
company has in his hands or under his control any money representing unclaimed or
undistributed assets of the company which have remained unclaimed or undistributed
for six months after the date of their receipt, the liquidator shall forthwith pay the
same to the Companies Liqiudation Account at the Bank of England. Every such
liquidator shall be entitled to the prescribed certificate of receipt for the moneys so
paid, and that certificate shall be an effectual discharge to him in respect thereof.

(4.) For the purpose of ascertaining and getting in any money payable into the
Bank of England in pm-suance of this section, the like powers may be exercised
and by the like authority as are exerciseable under section one hundred and sixty-
two of the Bankruptcy Act, 1883, for the purpose of ascertaining and getting in
the sums, funds, and dividends referred to in that section.

(5.) Any person claiming to be entitled to any money paid into the Bank of
England in pursuance of this section may apply to the Board of Trade for payment
of the same, and the Board of Trade may, on a certificate by the liquidator that the
person claiming is entitled, make an ordei-for thepajanent to that person of the sum
due. Any person dissatisfied with the decision of the Board of Trade in respect
of any claim made in pvirsuance of this section may appeal to the High Coiu-t.

(6.) This section shall apply whether the winding-up of the company has com-
menced before or after the commencement of this Act.

16. — (1.) Whenever the cash balance standing to the credit of the Companies Investment
Liquidation Account is in excess of the amount which in the opinion of the Board of surplus
of Trade is required for the time being to answer demands in respect of companies' funds on
estates, the Board of Trade shall notify the same to the Treasury, and shall pay general
over the same or any part thereof, as the Treasury may rec^uire, to the Treasury, account,
to such account as the Treasury may direct, and the Treasury may invest the said
sums, or any part thereof, in Government securities, to be placed to the credit of
the said account.

(2.) Whenever any part of the money so invested is, in the opinion of the Board
of Trade, required to answer any demands in respect of companies' estates, the
Board of Trade shall notify to the Treasury the amount so requii'ed, and the Treasury
shall thcrevipon repay to the Board of Trade such sum as may be required to the
credit of the Companies Liquidation Account, and for that purpose may direct the
sale of such part of the said securities as may be necessary.

(3.) The dividends on the investments under this section shall be paid to such
account as the Treasury may dii-ect, and regard shall be had to the amount thus

P. 3 I



850



Appendix A.



Separate
accounts of
particular
estates,
p. 272



Interests on
balances
above t-n-o
thousand
pounds.
p. 272
Certain re-
ceipts and
fees to be
applied in
aid of ex-
penditui-e.
Audit of
liquidators
accounts.
p. 237



Books to be
kept by
li(|uidator.
p. 233

Release of
liquidators.
pp. 692, 596



derived in fixing the fees payable in respect of proceedings in the winding-up of
companies.

17. — (1.) An account shall be kept by the Board of Trade of the receipts and
payments in the "winding-up of each company, and when the cash balance standing
to the credit of the account of any company is in excess of the amount which, in
the opinion of the committee of ins]pection, is required for the time being to answer
demands in respect of that company's estate, the Board of Trade shall, on the
request of the committee, invest the amount not so required in Grovernraent securities,
to be placed to the credit of the said account for the benefit of the said company.

(2.) Whenever any part of the money so invested is, in the opinion of the com-
mittee of inspection, required to answer any demands in respect of the estate of the
company of the assets of which the money so invested formed part, the Board of
Trade shall, on the request of the Committee, raise such sum as may be required by
the sale of such part of the said securities as may bo necessary.

(3.) The dividends on the investments made under this section shall be paid to
the credit of the company of the assets of which the money so invested formed
part.

18. When the balance at the credit of any company's account in the hands of the
Board of Trade exceeds two thousand pounds, and the liquidator gives notice to the
Board of Trade that the excess is not requu-ed for the purposes of the liquidation,
then such company shall be entitled to interest upon such excess at the rate of two
per centum per annum.

19. The Treasury may from time to time issue to the Board of Trade in aid of the
votes of Parliament, out of the receipts arising from fees, fee stamps, and dividends
on investments by the Treasuiy under this Act, any sums which may be necessary to
meet the charges estimated by the Board of Trade in respect of salaries and expenses
under this Act.

20. — (1.) Every liquidator of a company which is being wound up by order of
the Court shall, at such times as may be prescribed, but not less than twice in each
year diu-ing his tenui'e of office, send to the Board of Trade, or as they direct, an
account of his receipts and payments as such liquidator.

(2.) The account shall be in a j)rescribed form, shall be made in duplicate, and
shall be verified by a statutory declaration in the prescribed form.

(3.) The Board of Trade shall cause the accounts so sent to be audited, and for
the purpose of the audit the liquidator shall furnish the Board with such vouchers



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 113 of 134)