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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guinea a day, and where the Court appoints a shorthand writer a sum not exceed-
ing Sd. per folio of 90 words for any transcript of the evidence that may be
required, and such sums shall be paid by the party at whose instance the appoint-
ment was made, or out of the assets of the company as may be directed by the Court.

17. — (1.) If a person examined before a registrar or other officer of the Court
who has no power to commit for contempt of Court, refuses to answer to the
satisfaction of the registrar or officer any question which he may allow to be put,
the registrar or officer shall report such refusal to the judge, and upon such report
being made the person in defaidt shall be in the same position and be dealt with in
the same manner as if he had made default in answering before the judge.

(2.) The report shall be in writing, but without affidavit, and shall set forth the
question put, and the answer (if any) given by the person examined.

(3.) The registrar or officer shall, before the conclusion of the examination at
which the default in answering is made, name the time when and the place where
the defaidt will be reported to the judge ; and upon receiving the report the judge
may take such action thereon as he shall think fit. If the judge is sitting at the
time when the default in answering is made, such default may be reported
immediately.

Sittings of Courts.

18. Subject to the orders of the Lord Chancellor, the place of sitting of each
County Court having jurisdiction under the Acts shall, for the purpose of such
jurisdiction, be the town in which the Court holds its sittings for the general
business of the Court, under the provisions of the County Courts Act, 1888.

19. Subject to the provisions of the Acts, the times of the sitting of each Court
otlicr than the High Court in matters of the winding-up of companies shall be those
appointed for the transaction of the general business of the Court, unless the judge
of any such Court shall otherwise order.

{Sec Counlij Court {Stana/n-ics Jurisdiction) Rules, 1897, Rr. 2 — 4.)

.Service and Execution op Process.

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



Companies Winding-up Rules, 1890. Rules of 1890 873

(2.) But this rule shall not be construed to require any order, summons, petition,
or notice to bo 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
proceeding by order specially so directs.

21. — (1.) All notices and other documents for the service of which no special Service,
mode is directed may be sent by prepaid post letter to the last known address of the pp_ 29 131
person to be served therewith ; and the notice or document shall be considered 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.

Taxation of Costs. m a- <• ^

Taxation of costs

22. The provisions of the following rules numbered 23 to 30 shall apply to the payable by or to
taxation and allowance of costs payable by or to the official receiver or liquidator o^^c'il receiver
or which are to be paid out of the assets of the company. ^ly cilmpany

23. Every person whose bill or charges is or are to be taxed shall in all cases p. 568
give not less than four days' notice of the appointment to tax the same to the official Notice of ap-
reccivcr and to the liquidator (if any). pointmcut.

24. The bill or charges, if incurred prior to the appointment of a liquidator, p. 568
sliall be lodged with the official receiver, and if incurred after the appointment of a Lodg-ment of
liquidator, shall be lodged with the liquidator, three clear days before the ajjplica- bill.

tion for the appointment to tax the same is made. The official receiver or the P- ^^^
liquidator, as the case may be, shall forthwith, on receiving notice of taxation,
lodge such bill or charges with the proper taxing officer.

25. Every person whose bill or charges is or are to be taxed shall, on application Copy of bill to
either of the official receiver or the liquidator, furnish a copy of his bill of charges be furnished,
so to be taxed, on payment at the rate of -id. per folio, which payment shall be p. 569
charged on the assets of the company. The official receiver shall call the attention

of the liquidator to any items which, in his opinion, ought to be disallowed or
reduced, and may attend or be represented on the taxation.

26. Where any party to, or person affected by, any proceeding desires to make Applications
an application for an order that he be allowed his costs, or any part of them, for costs,
incident to such proceeding, and such application is not made at the time of the p_ 569
proceeding —

(1.) Such party or person shall serve notice of his intended application on the
official receiver, and, if a liquidator has been appointed, on the licjuidator.

(2.) The official receiver and liquidator ^may appear on such application and
object thereto.

(3.) No costs of or incident to such application shall be allowed to the applicant,
unless the Court is satisfied that the apiDlication could not have been made at the
time of the proceeding.

27. Upon the taxation of any bill of costs, charges, or expenses being com- Certificate of
pleted, the taxing officer shall issue to the person presenting such bill for taxation taxation.

his certificate of taxation. The bill of costs, charges, and expenses shall be Form 10 [670].

filed. p. 569

28. Every taxing officer shall keep a register of all bills taxed by him in Reo-ister of
windings-up under these rules, and shall, within fourteen days after the 31st day |jj^{^ taxed

of October in each year, make a return to the Board of Trade of all bills taxed by Forms 9 and 11

him during the twelve months preceding such 31st day of October. [677 6761

29. Before the bill or charges of any solicitor, manager, accountant, auctioneer, z^ ggg
broker, or other j^erson employed by an official receiver or liquidator, is or are ju, ,.„
taxed a certificate in writing, signed by the official receiver or liquidator, as the Ceititicate ot
case may be, shall be produced to the taxing officer setting forth whether any, ^^^^^'oXQ^crQ
and if so what, special terms of remuneration have been agreed to, and in the PP" '
case of the bill of costs of a solicitor, a copy of the resolution or other authority
sanctioning the employment.

30. — (1.) Where any bill of costs, charges, fees, or disbursements of any solicitor, Review of
manager, accountant, auctioneer, broker, or other person has been taxed by a taxation at
registrar of a Court other than the High Court, the Board of Trade may require instance of
the taxation to be reviewed by a taxing master of the Chancery Division of the Board of
High Com-t. Trade.

(2.) In any case in which the Board of Trade requii-e such a review of taxation p 559
as is above mentioned they shall give notice to the person whose bill has been taxed,
and shall apply to the taxing master of the Chancery Division of the High Court to
appoint a time for the review of such taxation, and thereupon such taxing master
shall appoint a time for the review of, and shall review, such taxation and certify



874



Appendix B.



Costs payable

out of the

assets.

pp. 231, 308,

566



the result thereof. The Board of Trade shall give to the person whose bill of costs
is to be reviewed notice of the time appointed for the review.

(3.) Where any such review of taxation as is above mentioned is required to be
made by a taxing master of the Chancery Division of the High Court, the registrar
whose taxation is to be reviewed shall forward to the said taxing master the bill
which is required to be reviewed.

(4.) The Board of Trade may appear upon the review of the taxation ; and if,
upon the review of the taxation, the bill is allowed at a lower sum than the sum
allowed on the original taxation, the amount disallowed shall (if the bill has been
paid) be repaid to the ofiBcial receiver, or the liquidator, or other person entitled
thereto. The certificate of the taxing master shall in every case of a review by
him under this rule be a sufficient authority to entitle the person to whom the
amoimt disallowed ought to be repaid to demand such amount from the person
liable to rejjay the same.

(5.) There shall be allowed to the person whose bill is reviewed such costs of and
incidental to his appearance on the review as the taxing master of the High Court
shall think proper, and such costs shall be paid to such person out of the assets of
the company : Provided that the costs of the attendance of a principal shall not be
allowed if in the opinion of the taxing master he could have been sufficiently repre-
sented by his London agent.

Costs Payable out of the Assets of the Company.

31, The assets of a company which is being wound up, remaining after payment
of the fees, and actual expenses incurred in realising or getting in the assets, shall,
subject to any order of the Court, and, if the ivinding-up is in the Stannaries Court,
subject to the provisions of the Staymaries Act, 1887, be liable to the following payments,
which shall be made in the following order of priority, namely : —

First. The taxed costs of the petition, including the taxed costs of any person

appearing on the petition whose costs are allowed by the Coiirt :
Next. The remuneration of the special manager (if any) :
,, The costs and expenses of anj^ person who makes, or concurs in making,

the company's statement of affairs :
,, The taxed charges of any shorthand writer appointed to take an examina-
tion : Provided that where the shorthand writer is appointed at the
instance of the official receiver the cost of the shorthand notes shall be
deemed to be an expense incurred by the official receiver in getting in
and realising the assets of the company :
,, The liquidator's necessary disbursements, other than actual expenses of

realisation heretofore provided for :
,, The costs of any person properly employed by the liquidator with the

sanction of the committee of inspection :
,, The renumeration of the liquidator :

,, The actual out-of-pocket expenses necessarily incurred by the committee
of inspection, subject to the approval of the Board of Trade.
{As to icords in italics, see Stannaries Court {Abolition) Act, 1896.)



Official Receivee as Peovisional Liciuidatoe.

32. — (1.) After the presentation of a petition, upon the apjjlication of a creditor,
or of a contributory, or of the company, and wpon proof by affidavit of sufficient
grounds for the appointment of the official receiver as provisional liquidator, the
Court may, if it thinks fit, and upon such terms as may be just, make such
appointment.

Form21 [154]. (2.) An order appointing the official receiver to be provisional liquidator prior to
the making of a winding-up order, shall bear the number of the petition in respect
of whii'h it is made, and shall state the nature and short description of the propeiiy
of which the official receiver is ordered to take possession.



Appointment
of provisional
liquidator,
p. 97



Form of petition.
ForruH Vi and 13
[18, 19].
],. 43

.Advf-rf i.sc-
mcrit of
petition.



Petition.

33. Every petition for the winding-up of any company by the Court, or subject
to the Hui)ervision of the Court, shall be in the Forms Nos. 12 & 13 in the Appendix,
with such variations as circumstances may require.

34. Every petition shall bo advertised seven clear days before the hearing, as
follows : —

(1.) In the case of a company whose registered office, or if there shall bo no such



Companies Winding-up Rules, 1890. Rules of 1890 875

office, then whose principal or last known principal place of business is or Form 16 [36].
was situate within ten miles of the principal entrance of the Royal Courts p. 62
of Justice, once in the London G'nzcttc, and once at least in one London daily-
morning newspaper, or in such other newspaper as the Court directs.
(2.) In the case of any other company, once in the London Gazette, and once at
least in one local newspaper circulating in the district where such regis-
tered office, or principal or last known place of business, as the case may
be, of such company is or was situate.

The advertisement shall state the day on which the petition was pre-
sented, and the name and address of the petitioner, and of his solicitor
and London agcut (if any).

35. Every petition shall, imless presented by the company, be served at the regis- Service of
tered office, if any, of the company, and if there is no registered office, then at the petition,
principal or last known principal place of business of the company, if any such can Forms 11 and
be found, upon any member, officer, or servant of the company there, or in case no 15 [38, 39].
such member, officer, or servant can bo found there, then by being left at such p. 63
registered office or principal place of business, or by being served on such member

or members of the company as the Coiu't may direct ; and every petition for the
winding-iip of a company, subject to the supervision of the Court, shall also be
served upon the liquidator (if any) appointed for the piu-pose of winding-up the
affau's of the company.

36. Every petition for the winding-up of any company by the Court, or subject Verification
to the supervision of the Court, shall be verified by an affidavit referring thereto, of petition.
Such affidavit shall be made by tlie petitioner, or by one of the petitioners, if more Form 17 [49].
than one, or, in case the petition is presented by a company, bysonre director, secre- ^ go

tary, or other principal officer thereof, and shall be sworn after and filed within
foiir days after the petition is presented, and such affidavit shall be sufficient j!;ri«;rt
facie evidence of the statements in the petition.

37. Every contributory or creditor of the company shall be entitled to be fur- ^^P^* °^ P®.^^^'",'^
nished, by the solicitor of the petitioner, with a copy of the petition, within 24 hours ^^ crecUtor o/
after requiring the same, on paying the rate of ^d. per folio of 72 words for such contributory.
copy. - p. 45

Order to "Wind up a Company.

38. An order to wind up a company shall contain at the foot thereof a notice Form and
stating that it will be the duty of the person who is at the time secretary or chief contents,
officer of the company, and of such of the persons who are liable to make out or Forms IS and
concur in making out the company's statement of afl^airs as the official receiver 19 [72, 767].
may require, to attend on the official receiver forthv\'ath on the service thereof at the p_ gg

place mentioned therein.

39. Three copies of every order to wind up a company, and order for the Transmis^on of
appointment of the official receiver as provisional liquidator of a company, sealed i-g^eiyei-'^ ^^^
with the seal of the Court, shall forthwith be sent by post or otherwise by the go
registrar to the official receiver. a •

40 . The official receiver shall cause a copy of the order to wind up the company Service of
sealed with the seal of the Court to be served upon the secretary or other chief oi'der.
officer of the company at the registered office of the company, or upon such other p. 93
person or persons, or in such other manner as the Court may direct. -\r +• t

41. — (1.) When an order to wind \r\^ a company is made the official receiver shall -'-^O'^^c^ oi
forthwith give notice thereof to the Board of Trade, who shall forthwith cause such oider.
notice to be gazetted. P- 93

(2.) The official receiver shall forthwith send notice thereof to such local paper as -p nn
the Board of Trade may from time to time direct, or, in default of siich direction, as
he may select.

Special Manager.

42. — (1.) An application by the official receiver for the appointment of a special Appointment
manager shall be supported by a report of the official receiver, which shall be placed of special
on the file of proceedings, and in which shall be stated the amount of remuneration manager
which, in the opinion of the official receiver, ought to be allowed to the special [s- 5 of Act of
manager. No affidavit by the official receiver in support of such an ajiplication 1890].
shall be required. p. 107

(2.) The remuneration of the special manager shall, unless the judge otherwise in
any special case directs, be stated in the order appointing him.

(3.) A copy of the order appointing a special manager shall be transmitted to the
Board of Trade by the official receiver.



876



Appendix B.



Notice of first
meeting' to
officers of
company
[s. 6 of Act of
18S)0].

Form 156.
p. 178

Notice of first
meeting' to
Board of Trade,
p. 176

Times for
holding first
meeting.
p. 175



Notice to con-

tributories.
Forms 22 and 23

[154, 155].
p. 177

Meetings for
ascertaining
wishes of cre-
ditors and con-
tributories
[s. 13 of Act of
1S90].

rorm31[166].
p. 348

Meetings sub-
sequent to the
first meetings.
Form 30 [165].
p. S48

Notices of
general meet-
ings.

Form 26 [396].
p. 348

Proof of notice.
Forms 27 and 28

[399, 161].
pp. 176, 348

Costs of call-
ing meeting,
p. 348



Chairman of
general rncet-

Form2.5[162].
p. 348

Votes at meet-
in gH.
p. 348



Copy of rcHolu-

tion for oliief

clerk or regiH-

trar.

Form ri2 [169].

Pf.. 176, 348,

607



First Meetings op Ceeditoes and Conteibutoeies.

43. — (1.) The official receiver shall give to each of the directors and other officers
of the company who in his opinion ought to attend the first meetings of creditors and
contributories seven days' notice of the time and place appointed for each meeting.
The notice may be either delivered personally or sent by prepaid po.-^t letter, as may
be convenient. It shall be the duty of every director or officer who receives notice
of such meeting to attend if so required by the official receiver.

44. The official receiver shall fix the days for the first meetings of creditors and
contributories, and shall forthwith give notice thereof to the Board of Trade, who
shall gazette the same.

45. Where practicable, caid unless the Court specially directs to the contrary, the first
meetings of creditors and contributories shall not be held until after the statement of affairs
prescribed by section 7 of the Companies [Winding-up) Act, 1890, has been submitted to
the official receiver. If an extension of time for summoning the meetings or either of them
is required, an application for extension of time may be made by the official receiver ex
parte on a report ivithout any affidavit.

[Annulled by B. 1 of April, 1895.)

46. Notice of the first meeting of contributories shall be sent to every person who
appears from the company's books or otherwise to be a contributory of the company.

Geneeal Meetings of Ceeditoes and Conteibutoeies.

47. Subject to the provisions of the Companies (Winding-up) Act, 1890, and to
the control of the Court, the liquidator may from time to time, when he thinks
expedient, summon, hold, and conduct meetings of the creditors or contributories
for the purpose of ascertaining their wishes in all matters relating to the winding-up.

48. Meetings subsequent to the first meetings of creditors and contributories
shall be summoned by sending notices to them. The notice to each creditor shall
be sent to the address given in his proof, or if he has not proved, to the address
given in the statement of affairs of the company, or to such other address as may be
known to the person summoning the meeting. The notice to each contributory
shall be sent to the address mentioned in the company's books as the address of
such contributory, or to such other address as may be known to the person summon-
ing the meeting.

49. The notices of general meetings to be issued to creditors and contributories
by the official receiver or liquidator shall, where no special time is prescribed, be
sent off not less than seven days before the day appointed for the meeting.

50. A certificate by the official receiver or other officer of the Court, or by the
clerk of any such person, or an affidavit by the liquidator, or his solicitor or the
clerk of either of such persons, that the notice of any meeting has been duly posted,
shall be sufficient evidence of such notice having been duly sent to the person to
whom the same was addressed.

51. The costs of summoning a meeting of creditors at the instance of any person
other than the official receiver or liquidator shall be paid by the person at whose
instance it is siuumoned, who shall before the meeting is summoned deposit with
the official receiver or liquidator (as the case may be) such sum as may be required
by the official receiver or liquidator as security for the payment of such costs. The
said costs .shall be repaid out of the assets of the company, if the creditors or con-
tributories, as the case may be, shall by resolution so direct.

52. Where a meeting is summoned by the official receiver he or someone nomi-
nated by him shall be chairman of the meeting. At every other meeting of creditors
and contributories (other than meetings to which the schedule of the Companies
(Wiuding-up) Act, 1890, applies) the chairman shall be such person as the meeting
by resolution shall appoint.

53. The provisions of section 91 of the Companies Act, 1862, relating to votes of
creditors and contributories at meetings summoned under that section shall apply to the
voting of creditors and contributories at meetings held under the Companies [Winding-up)
Act, 1890, and these Rules.

[Annulled by It. 34 of April, 1892. See Ji. 25 of April, 1892.)

54. The (jfficial receiver, or, as the case may be, the liquidator, shall send in the
High Court to the chief clerk of the judge to whom the winding-up of the company
is assignod, and in any other Court to the registrar, a copy, certified by him, of
every resolution of a meeting of creditors or contributories.



Companies Winding-up Rules, 1890. Rules of 1890 877



65. "Where a meeting' of creditors or coutributorios is sumnaonod by notice, the
proceedings and resolutions of the meeting shall, unless the Court otherwise orders,
be valid, notwithstanding that some creditors or couti'ibutories may not have
received the notice sent to them.

56. Where a meeting of creJitoi's is adjourned, the adjourned meeting shall be
held at the same place as the original place of meeting, unless in the resolution for
adjournment another place is specified, or unless the Court otherwise orders.

57. In calculating a quorum at a creditors meeting, those persons only who are
entitled to vote shall be reckoned.



Noa-reacption
of notice by a
creditor,
pp. 176, 349

Adjournmr^nt.
Form -29 [163].
pp. 176, 349

Quorum,
p. 349



Statement op Affairs.

58. — (1.) Every person who under section 7 of the Companies (Winding-up)
Act, 1890, has been required by the official receiver to submit and verity a state-
ment as to the affairs of the company, shall be furnished by the official receiver
with forms and instructions for the preparation of the statement. Tlie statement
shall be made out in duplicate, one copy of which shall be verified by affidavit.
The official receiver shall place upon the file of proceedings in the winding-up the
verified statement of affairs.

(2.) The official receiver may from time to time hold personal interviews with
such person or persons, for the purpose of investigating the company's affairs ;
and it shall be the duty of every such person to attend on the official receiver at
such time and place as the official receiver may appoint, and give the official
receiver all information that he may require.

59. Where any person requires any extension of time for submitting the state-
ment of affairs, he shall apply to the official receiver, who may, if he thinks fit,
give a written certificate extending the time, which certificate shall be filed with
the proceedings in the winding-up, and shall render an application to the Court
unnecessary.

60. After the statement of aft'airs of a company has been submitted to the
official receiver it shall be the duty of each person who has made it, if and when



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 117 of 134)