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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on account of the small amount of the purchase moneys or other cause, it shall,
having regard to the amount of the security given by the official liquidator, be
thought proper that the purchase moneys shall be paid to him, all conditions and
contracts of sale shall provide that the purchase moneys shall be paid by the respec-
tive purchasers into the Bank of England, to the account of the official liquidator
of the company.

Calls.

Rr. 33 to 35 dealt exclusively with calls in a compulsory winding-up.

Payment in of Moneys and Deposit of Securities.
Rr. 36 to 44 dealt exclusively with compulsory winding-up.

Meetings of Creditors or Contributories.

45. When the judge shall direct a meeting of the creditors or contributories of
the company to be summoned under the 91st or 149th section of the said Act, the
official liquidator shall give notice in writing, seven clear days before the day
appointed for such meeting, to every creditor or contributory, of the time and place
appointed for such meeting, and of the matter upon which the judge desii-es to
ascertain the wishes of the creditors or contributories ; or, if the judge shall so direct,
such notice may be given by advertisement, in which case the object of the meeting
need not be stated, and it shall not be necessary to insert such advertisement in the
London Gazette.

46. The votes of the creditors or contributories of the company at any meeting
summoned by the direction of the judge, may be given either persoually or by
proxy ; but no creditor shall appoint a proxy who is not a creditor of the company
whose debt or claim has been allowed, and no contributory shall appoint a proxy
who is not a contributory of the company.

47. The direction of the judge for any meeting of creditors or contributories under
the 91st or I49th section of the said Act, and the appointment of a person to act

P. 3 K



866 Appendix B.

as chairman of any such meeting, shall be testified by a memorandum signed by the
chief clerk of the judge.

Direction or Sanction of the Judge.

\_QH(tre, -whether E,r. 48 to 50 are applicable to supervision proceedings. They do
not apply to voluntary liquidations.]

48. The sanction of the judge to the drawing, accepting, making and indorsing
of any bill of exchange or promissory note by any official liquidator, shall be testi-
fied by a memorandum on such bill of exchange or promissory note, signed by the
chief clerk of the judge.
p. 684 49. Every application for the sanction of the judge to a compromise with any

contributory or other person indebted to the company, shall be supported by the
affidavit of the official liquidator that he has investigated the affairs of such con-
tributory or person, and stating his belief that the proposed compromise will be
beneficial to the company, and his reasons for such behef ; and the sanction of the
judge thereto shall be testified by a memorandum, signed by the chief clerk of the
judge, on the agreement of compromise, unless any party shall desire to appeal
from the decision of the judge, in which case an order shall be drawn up for that
purpose.

50. The direction or sanction of the judge for any other proceeding or act to
be taken or done by the official liquidator shall be obtained upon summons, and an
order shall be drawn up thereon, unless the judge shall otherwise direct.

Applications to the Court or Judge under sects. 137, 138, 141, 167, and 168 of the Act.

p. 655 51. Every application under the 137th, 138th, or 141st section of the said Act

shall be made by petition or motion, or, if the judge shall so direct, by summons at
Chambers ; and every apj)lication under the 167th or 168th section of the said Act
shall be made by petition.

Orders,

52. All orders made in Chambers shall be drawn up in Chambers, unless specially
directed to be drawn up by the registrar, and shall be entered up in the same
manner, and in the same office, as other orders made in Chambers.

Adverliseincnts.

p. 675 53. When an advertisement is required for any purpose except where otherwise

directed by these rules, the advertisement shall be inserted once in the London
Gazette, and in such other newspaper or newspapers, and for such number of times
as may bo dii-ected. The judge may, in such cases as he shall thmk fit, dispense
with any advertisement required by these rules.

Admission of Documents.
E. 54 is superseded by R. S. C, Ord. XXXII. rr. 2, 3, supra, p. 128.

Affidavits.

55. Where an order shall have been made for the winding-up of any company,
any person intending to use any affidavit in any proceeding under such order, shall
file the same in the [liccord and Writ Clerks' Office], and give notice thereof to
the official liquidator. The person, other than the official liquidator, filing the
affidavit shall not bo rcquii-ed to take an office copy thereof, but an office copy
thereof shall be taken by the official liquidator, and he shall produce the same at
the hearing of any ap])licati()n or proceeding upon which it is intended to be used,
unless the judge shall otliorvvise direct.

[Hco II. H. C, Ord. XXXVIII. r. 20. The affidavit is now filed at Eoom (>(!,,
Bankruptcy Buildings.]

Certificate of Chief Clerk.

56. The '18th, 49th, SOth, 51st, 52nd and 5.")th Rules of the 35th of the Consoli-
dated General Orders shall apply to all certificates of the chief clerk in the matter
of tho winding-up of any comimny ; nevertheless, certificates on passing the official



General Order, November, 1862. Order of 1862 807

liquidator's accounts may be approved and si^'nod by the judge without delay, and
upon beinn;- so si<^ned shall be filed and forthwith acted upon.

[For "chief clerk," now read "registrar," if the rule is not now obsolete. See
E. 17 of April, 1892.] •

Register and File of Proceedings.

57. A register shall be kept of all proceedings in the judge's chambers, iu each
matter, in the same manner as required by the o7th rule of the 35th of the Consoli-
dated General Orders, and no documents or proceedings are to be filed iu the judge's
chambers, unless the judge shall otherwise direct.

[For " judge's chambers," now read " registrar's office." R. 17 of April, 1892.]

68. All orders, exhibits, admissions, memorandums, and office copies of affidavits,
examinations, depositions, and certificates, and all other documents relating to the
winding-up of any company, shall be filed by the official liquidator, as far as may
be, in one continuous file, and such file shall be kept by him or otherwise, as the
judge may from time to time direct. Every contributory of the company, and every
creditor thereof whose debt or claim has been allowed, shall be entitled, at all
reasonable times, to inspect such file free of charge, and, at his own expense, to take
copies or extracts from any of the documents comprised therein, or to be furnished
"with such copies or extracts at a rate not exceeding three halfpence per folio of
Beventy-two words ; and such file shall be produced in Court, or before the judge,
and otherwise, as occasion may require.

[This rule, so far as the High Court is^concerned, seems to be superseded by R. 11
of April, 1892, and R. 1 of November, 1895. (See R. 17 of April, 1892.)]

Provisional Official Liquidators.

59. All the above rules relating to official liquidators shall, as far as the same
are applicable, and subject to the dii'ections of the judge in each case, apply to
provisional official liquidators.

Attendance and Apjyearance of Parties.

60. Every person, for the time being on the list of contributories of the company pp. 138, 176
left at the chambers of the judge by the official liquidator, and every person having

a debt or claim against the company, allowed by the judge, shall be at liberty, at his
own expense, to attend the proceedings before the judge, and shall be entitled, upon
payment of the costs occasioned thereby, to have notice of all such proceedings as
he shall by written request desire to have notice of ; but if the judge shall be of
opinion that the attendance of any such person upon any proceeding has occasioned
any additional costs which ought not to be borne by the funds of the company, he
may direct such costs, or a gross sum in lieu thereof, to be paid by such person ; and
such person shall not be entitled to attend any further proceedings until he has paid
the same.

[The rule is repeated in R. 173 of 1890.]

61. The judge may from time to time appoint any one or more of the contribu-
tories, or creditors, as he thinks fit, to represent before him, at the expense of the
company, all or any class of the contributories or creditors, upon any question as to
a compromise with any of the contributories or creditors, or in and about any other
proceedings before him relating to the winding-up of the company, and may remove
the person or persons so appointed. In case more than one person shall be so ap-
pointed, they shall unite in employing the same solicitor to represent them.

62. No contributory or creditor shall be entitled to attend any proceedings at the
chambers of the judge, unless and until he has entered in a book to be kept there
for that purpose his name and address, and the name and address of his solicitor (if
any), and upon any change of his address or of his solicitor, his new address, and
the name and address of his new solicitor.

[Repeated in rule of 19th May, 1896.]

Services of Summonses, Notices, ^c.

63. Services upon contributories and creditors shall be effected (except when per-
sonal service is required) by sending the notice, or a copy of the summons or order

a k2



868 Appendix B.

or other proceeding, through the post in a prepaid letter, addressed to the solicitor
of the party to be served (if any) or otherwise to the party himself at the address
entered or last entered pursuant to the preceding rule ; or if no such entry has been
made, then, if a contributory, to his last known address or place of abode ; and if a
creditor, to the address given by him, pursuant to the foi-egoiug R. 20 ; and such
notice, or copy summons, order, or other proceeding, shall be considered as served
at the time the same ought to be delivered in the due course of delivery by the post
office, and notwithstanding the same may be returned by the post office.

64. No service under these rules shall be deemed invalid by reason that the
Christian name, or any of the Christian names, of the person on whom service is
sought to be made, has been omitted, or designated by initial letters, in the list of
contributories, or in the summons, order, notice, or other document wherein the
name of such contributory or creditor is contained, provided the judge is satisfied
that such service is in other respects sufficient.

Termination of Winding-up.
Er. 65 to 67 apply exclusively to compulsory winding-up.

68. Duties of solicitor of official liquidator.

For 7ns.

69. The forms set forth or referred to in the third schedule to these orders, with
such variations as the circumstances of each case may require, may be used for the
respective purposes mentioned in such schedule.

[The forms where applicable have been inserted in their proper places. Many of
the forms of 1890 are based on them.]

Fees.

70. Solicitors shall be entitled to charge, and be allowed, the fees set forth and
referred to in the first schedule hereto, unless the Court or judge shall otherwise
specially direct.

71. The fees of Court set forth and referred to in the second schedule hereto,
shall be paid in relation to proceedings in the Court of Chancery under the Com-
panies Act, 1862, and shall be collected by means of stamps, in the manner pre-
scribed by the 39th of the Consolidated General Orders.

[Cons. Order repealed. See App. 0., R. S. C. 1883.

As to Court fees, see now Order of Supreme Court of 4th July, 1884, and Order
as to Fees, of Dec. 1891, infra.']

Taxation of Costs.

72. "Wliere an order is made in Court or Chambers for payment of any costs,
the order shall direct the taxation thereof by the taxing master ; except in cases
where a gross sum in lieu of taxed costs is fixed by the order in accordance with the
37th rule of the 40th of the Consolidated General Orders.

See R. S. C, Ord. LXV. r. 23.

Power of Judge.

73. The power of the Court, and of the judge sitting in Chambers, to enlarge
or abridge the time for doing any act, or taking any proceeding to adjourn, or
review any proceeding and to give any direction as to the course of proceeding, ia
unaffected by these rules.

General Directions.

74. Tlio general practice of the Court, including the course of proceeding and
practice at the judges' chambers, as provided by the statute 16 & 16 Vict. c. 80,
and the General Orders of the Court relative thereto, shall, in cases not provided
for by the Companies Act, 1862, or these rules, and so far as the same are applic-
able, and not inconsistent with the said Act, or these rules, apply to all proceedings
for winding-up a company. (And see R. 178 of 1890.)



General Oeder, November, 1862. Order of 1862 8G9



Application of Rules.



75. These rules apply only to proceedings under the Companies Act, 1862.
[But see R. 17 of April, 1S92.]



Commencement of Rides.

76. These rules shall take effect and come into operation on and after the 25th
day of November, 18G2.

Interpretation.

77. The 1st rule of the 23rd of the Consolidated General Orders, and the general
interpretation clause therein, shall be deemed to extend and apply to the rules of
this order; and such rules shall have the effect of and be deemed to be General
Orders of the Court.

[Cons. Orders repealed. See App. 0. to R. S. C. 1883.]



870



Appendix B.



COMPANIES WINDING-UP EULES, 1890.



of terms,
p. 7



GENERAL RULES MADE PURSUANT TO SECTION 26 OF THE
COMPANIES (WINDING-UP) ACT, 1890.

Peeliminaey.

Short title and 1. These Rules may be cited as "The Companies Winding-up Rules, 1890."
commence- They shall come into operation on the first day of Janiiary one thousand eight
ment. hundred and ninety-one.

Interpretation 2. In these Rules, unless the context or subject-matter otherwise requires, —
{a.) "The Acts" means the Companies Acts, 1862 to 1890.

" The company " means a company which is being wound up, or against which

proceedings to have it wound up have been commenced.
"The Couft'' includes a Judge of the Court, and a chief clerk of the Chancery
Division of the High Court, or other officer of the Court when exercising the
powers of the Court pursuant to the Acts or these Rules, or the practice of the
Court.
" Creditor" includes a corporation, and a firm of creditors in partnership.
"Gazetted" means published in the London Gazette.

^^ Judge'''' means in the High Court the judge to whom the petition to wind up the
company is assigned, and in any other Court the judge thereof or officer who
exercises the poxcers of the judge thereof.
"Proceedings" means the proceedings in the winding-up of a company under

the Acts.
' ' Official Receiver ' ' includes any officer appointed by the Board of Trade to

discharge the duties of official receiver under the Acts.
"Registrar,'''' as applied to a County Court, includes, where there are joiitt registrars,
either 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 ivind'ing-up the functions which in the
High Court are exercised by a registrar or chief clcr/c.
" Sealed " means sealed with the seal of the Court.
" Taxing Officer" means the officer of the Coiu't whose duty it is to tax costs

in the proceedings of the Court under its ordinary jurisdiction.
' ' Liquidator ' ' includes an official receiver when acting as liquidator.
(l).) In the application of these Rules to any Court other than the High Covirt,
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.

{The drjini/ions of "Court" and "judge" are, so far as the High Court is
concerned, annulled by R. 34 of April, 1892, other definitions being given in R. 35,
which also defines "registrar" in the High Court.)

use of forms 3, — (].) The forms in the Appendix, where applicable, and where they are not

m Appendix, applicable forms of the like character, with such variations as circumstances may

p. 19 rcfjuirc, shall bo used. Whore such forms are applicable any costs occasioned by

the use of any other or more jirolix forms nhall be borne by or disallowed to the party

using tlio same, utdess fho Court sliall otherwise direct.

(2.) I'rovided that the Board of Trade may from time to time alter any forms
■wlii(;li relate to matters of an jidministrative and not of a judicial character, or sub-
stitute new forms in lieu thereof. Where the Board of Trade alters any form, or
substitutes any now form in lieu of a form prescribed by these rules, such altered
or substituted form shall bo published in the London Gazette.



p. 28



Companies Winding-up Rules, 1890. Rules of 1890 871

Court and Ciiambees.

4. In the High Court— Proceedings
(1.) All matters and applications to the Court or a judge in the tvinding-iip of a com- in High

pany as to which the procedure and practice is not altered by the Companies Court.
[JVinding-up) Act, 1890, and these Rules, and which according to the practice
of the Court or the directions of the judge have been heard in Court or in
Chambers, shall continue to be so heard.
(2.) Subject to the provisions of the Companies {Winding -t(j)) Act, 1890, and these
Mules, applications to the Court under the said Act and these Rules shall be
heard in Court or in chambers according as the judge shall by any general or
special directions order. Provided that appeals to the Court from the official
receiver and Board of Trade and liquidator shall be brought by notice of motion
to the Court pursuant to the Rules of the Supreme Court with reference to motions.
[Annulled by R. Z^ of April, 1892, and see now Rr. 3 and 5 of April, 1892.)

5. In Courts other than the High Court the following matters and ajiplications Proceedings
to the Court shall be hoard in open Court : — in Courts

(ff.) Petitions. other than

(/;.) Public examinations. High Court.

(c) Applications imder section 1G7 of the Companies Act, 1862. pp 25, 551

\d.) Applications to rectify the register. 5ij'9 530,

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

(y.) Appeals from any decision or act of the Hquidator.

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

(A.) Proceedings under section 10 of the Companies (Winding-up) Act, 1890.

6. Siibject to the provisions of the Acts and Rules, any matter or application in Adjourn-
a Court other than the High Court may at any time, if the judge thinks fit. be ment from
adjourned from Chambers to Court or from Court to Chambers ; and if all the con- Chambers to
tending parties requhe any matter or application to be adjourned from Chambers Court and
into Court it shall be so adjoiu-ned. vice versd.

p. 28
Proceedings.
7. — (1 .) Every proceeding in Court or in Chambers under the Acts shall be dated, Proceedings,
and shall be intituled "In the matter of the Companies Acts, 1862 to 1890," -with how intituled,
the name of the Coiu't in which it is taken, and of the company to which it relates. Forms 1 and 2.
Numbers and dates may be denoted by figures.

(2.) The first proceeding in every winding-up matter shall have a distinctive
number assigned to it by the proper officer, and all subsequent proceedings in the
same matter shall bear the same number. Transfer bv

8. A judge of the High Court to whom the exercise of the jurisdiction to wind ,-,](io.g Qt
up companies is assigned may at any time, for good cause shown, order the pro- ttj^v. Court
ceedings in any Court other than the High Court to be transferred to the High r "g ^^ . „+
Court, or any proceedings in the High Court to be transfei-red from the High Court q£ ^§gQ-]

to any other Court. Where the transfer is to the High Court, the winding-up j^qj-j^j 3 [5781
shall be assigned to the judge who made the order of transfer. enw

9. The judge of any Court having jiirisdiction to order the winding-up of a L,'
company other than the High Court or a Palatine Court may at any time, for good i^-ijinsier by
cause shown, order any proceedings which have been commenced or are pending in J^ o® ,
his Court to be transferred to any Court which has jurisdiction to order the winding- ^ourt other
up of a company not being- the High Court or a Palatine Court. tlian iiign

10. Notice of an application for a transfer of proceedings shall be served on the ^''^ „ r»;iyaT
official receiver before the hearing thereof. caw"^ [OToJ.

11. When an order of transfer has been made the person on whose application P' "^'

the order is made shall, if the transfer is to the High Court, lodge with the chief N^otice to official

clerk of the judge to whom the winding-up becomes assigned, and if the transfer is ^'^'^^'iEf'

to any other Court with the reo-istrar of that Court, a sealed copy of the order of „'

transfer Transmission

transier. .... of order of

12. Where the proceedings in any winding-up are transferred by any Court, the transfer.
official receiver of the Court to which such proceedings are transferred shall become p. 507
the official receiver in the winding-up in place of the official receiver of the Court Transfer of
from which the proceedings are transferred. official receiver's

13. AVhere any proceedings are transferred from a Court to any other Court, the '^^"j-'^i
records of proceedings shall, if the transfer is to the High Court, be transmitted to ^'

the chief clerk of the judge to whom the winding-up becomes assigned, and if the Transmission
transfer is to any other Court to the registrar of that Court. of records,

J). 507



872



Appendix B.



Notice of
transfer to
official
receiver and
Board of
Trade.

Form 4 [5791.
p. 507
Transfer of
jurisdiction of
County Court
and pending
business,
p. 508



14. As soon as the chief clerk of the judge (if the transfer is to a judge of the
High Court) or the registrar of the Coui-t (if the transfer is to any other Court) has
received the records of proceedings from the Court from which the transfer is made
he shall give notice of the transfer to the official receiver of the Court to which the
proceedings are transferred, who shall give notice of the transfer to the Board of
Trade. When a winding-up is transferred from one Court to another, it shall
receive a new distinctive number.

15. Whenever the Lord Chancellor, by order under his hand, shall exclude any
County Court from having jurisdiction under the Acts, or shall attach the district
or any part of the district of a County Court to the High Court, or any other
County CoiU't, or shall detach the district or any part of the district of any County
Court from the district and jurisdiction of the High Court, any winding-up
business pending in the Court or district to which the order relates shall become
transferred to such Court as shall be mentioned for the purpose in the order ; and,
thereupon, the Rules as to transfer of proceedings shall apply to the transfer of
such pending proceedings in all respects as if the proceedings had been transferred
by order of a Court having power to transfer proceedings.



Shorthand
notes, &c.
Forms 5, 6, 7
[612, 613,
6181.
p. 526



Committal of
contumacious
witness.
Form 39 [616].
p. 526



Place of
hitting of
County Court,
p. €07
Times for
holding
Courts other
than the
Hifrh Court,
p. 607

Duties of
bailiff, &c.
pp. 29, 607



Witnesses and Depositions.

16. If the Court or the officer of the Court before whom any examination is
under the Acts and these Kules directed to be held shall in any case, and at any
stage in the proceedings, be of opinion that it would be desirable that a person
(other than the person before whom an examination is taken) should be appointed
to take down the evidence of any pers(m examined under the Acts and Rules in
shorthand or otherwise, it shall be competent for the Court or officer aforesaid to
make such appointment ; provided that Avhere the application is made by the official
receiver he shall nominate a person for the purpose, and the person so nominated
shall be appointed, unless the Court or officer holding the examination shall other-
wise order. Every person so appointed shall be paid a sum not exceeding one



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 116 of 134)