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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required, to attend on the official receiver and answer all such questions as may be
put to him, and give all such further information as may be required of him by the
official receiver in relation to the statement of affairs.

61. Any default in complying with the requirements of section 7 of the Com-
panies (Winding-up) Act, 1890, may be reported by the official receiver to the
Court.

62. A person who is required to make or concur in making any statement of
affairs of a company shall before incurring any costs or expenses in and about the
preparation and making of the statement apply to the official receiver for his
sanction, and submit a statement of the estimated costs and expenses which it is
intended to incur ; and no person shall be allowed out of the assets of the company
any costs or expenses which have not before being inciu'red been sanctioned by the
official receiver.

Appointment of Liquid atoe.

63. — (1.) As soon as possible after the first meetings of creditors and contributories
have been held the official receiver, or the chairman of the meeting, as the case may
be, shall report the result of each meeting to the Court.

(2.) Upon the result of the meetiitgn of creditors and contributories being reported to
the Court, the Court may, if the creditors and vontribiduries are unanimous in their
determination, upon the application of the official receiver, forthwith make the appoint-
ments necessary for giving effect to such determination . In any other case the Court shall,
on application by the official receiver, fix a day for considering the determinations of the
meetings, deciding differences {if any), and making such appointments and orders as shall
be necessary.

{Annulled by R. 2 of April, 1895.)

(2a.) ^Substituted by R. 2 of April, 1895, for the annulled (2).]

(3.) When a time and place have been fixed for the consideration of the detemii-
nations of the meetings, such time and place shall be advertised by the official
receiver in such manner as the Court shall direct, but so that the first or only
advertisement shall be published not less than seven days before the day so fi.xed.

(4.) Upon the consideration of the determinations of the meetings the Court shall
hear the official receiver and any creditor or contributory.

(6.) If a liquidator is appointed a copy of the order appointing him shall be Form 34 [177].



Preparation

of statement

of affairs

[s. 7 of Act of

1890J.

Form 3 3 [149].

p. 154



Extension of
time for sub-
mittinsj state-
ment of affairs.
p. 154

Information
subsequent to
statement of
affairs,
p. 154
Default.



Expenses of
statement of
affairs.
p. 154



Appointment of
licjuidator on
report of meet-
ing's of creditors
and contribu-
tories.

Form 32 [169].
p. 191

Form 31 [177].
pp. 188, 191



878



Appendix B.



Advertisement
of appointment.
Form 36 [184].
p. 191

Death, &c. of
liquidator.
p. 592

Style of official
receiver when he
is liquidator.
p. 192



Standing
security to
Board of
Trade.

Form 35 [188].
pp. 110, 198



Failure to
give or keep
up senuritv.
PI). 110, 195,
198, 592



transmitted to tlie Board of Trade by tte official receiver, and the Board of Trade
shall, as soon as the liquidator has given security, cause notice of the appointment
to be gazetted. The expense of gazetting notice of the appointment shall be paid
by the liquidator, but may be charged by him on the assets of the company.

64. Every appointment of a liquidator or committee of inspection shall be
advertised by the liquidator in such manner as the Court directs immediately after
the appointment has been made and the liquidator has given the required security.

65. In case of the death, removal, or resignation of a liquidator, another may be
appoiuted in his place in the same manner as directed in the case of a first appoint-
ment, and the official receiver shall on the request of not less than one-tenth in
value of the creditors or contributories summon meetings for the purpose of
determining whether or not the vacancy shall be filled.

66. When the official receiver is liquidator of a company he shall be styled
"official receiver and liquidator."

Sectjeity by Liqitidator oe Special Managee.

67. In the case of a special manager or a liquidator other than the official
receiver the following rules as to sectu-ity shall be observed, namely : —

(1.) The security shall be given to such officers or persons and in such manner as

the Board of Trade may from time to time direct.
(2.) It shall not be necessary that security shall be given in each separate
wiuding-iip ; but security may be given either specially in a particular
winding-up or generally to be available for any winding-up in which the
person giving security may be appoiuted either as liquidator or special
manager.
(3.) The Board of Trade shall fix the amount and nature of such security, and
may from time to time, as they think fit, either increase or diminish the
amount of special or general security which any person has given.
(4.) The certificate of the Board of Trade that a liquidator or special manager
has given security to their satisfaction shall be placed on the file of
proceedings.
(5.) The cost of furnishing the required security by a liquidator or special
manager shall be borne by him personally, and shall not be charged
against the assets of the company as an expense incurred in the winding-up.
68. — (1.) If a liquidator or special manager fails to give the required security
within the time stated for that purpose in the order appointing him or any extension
thereof, the official receiver shall report such failure to the Court, who shall there-
iipon rescind the order appointing the liquidator or special manager.

(2.) If a liquidator or special manager fails to keep up his security, the official
receiver shall report such failure to the Court, who may thereupon remove the
liquidator or special manager and make such order as to costs as the Court shall
think fit.



Eepoi-t of official

receiver to be

filed

[s. 8 of Act of

189 J].

pp. 171, 527

Appointment of
time ff)r con-
sideration of
riport.
p. 527

Consideration of
report.
p. 527
Order for
public ex-
amination.
Form 37 [600],
p. 627



Public Examination.

69.- — (1.) A report made by the official receiver pursuant to section 8 of the
Companies (Winding-up) Act, 1890, shall state in a narrative form the facts, and
matters which the official receiver desires to bring to the notice of the Court, and his
opinion as required by section 8 of the Companies (Winding-up) Act, 1890.

70. The official receiver may apply to the Court to fix a day for the consideration
of the report, and on such ajDplication the Court shall appoint a day on which the
rcjiort shall be considei'cd.

71 . Thelconsideration of the report shall be before the judge of the Court personally
in Chambers, and the official receiver shall personally, or by counsel or solicitor,
attend the consideraticm of the report, and give the Court any further information
or oxi)lanation with reference to the matters stated in the report which the Court
may require.

72. Jf (he Court makes an order pursuant to sub-section nine of section eight of the
Companies [Winding-up) Act, 1890, directing any person to attend for public examination,
the examination shall he held in open Court —

(tf.) Jf the winding-up of the company is in the High Court, before such one of the
officers of the Court mentioned in section 8 of the Companies [IVinding-up) Act,
1890, as the Court may direct, and in the absence of any such direction, before a
registrar in bankruptcy of the High Court.

(i.) Jf the winding-up of the company is in a County Court, before the judye of the
Court, or before a registrar of the Court if such registrar is also a district



Companies Winding-up Rules, 1890.



Rules of 18 90 879



registrar of the High Court named hij the Lord Chancellor for the purpose of
holding public examinations under the Acts or before ang such district registrar.
(c.) If the icindi)if/-icp of the companif is in the Stannaries Court, before the Vice- Warden.
{Annulled bg iL 34 of April, 1892. Sec now H. 26 of April, 1892.)

73. Upon an order directing a person to attend for public examination being
made, the official receiver shall apply for the appoiutmeut of a day on -which the
public examination is to be held.

74. A day and place shall be appointed for holding the public examination, and
notice of the day and place so appointed shall be given by the official receiver to the
person who is to be examined by sending such notice in a registered letter addressed
to his usual or last known address.

75. The official receiver shall give notice of the order appointing the time and place
for holding a public examination to the creditors and contributorica by advertising
the order in such newspapers as the Board of Trade from time to time direct, or in
default of any such direction as the official receiver thinks fit, and shall also forward
notice of the order to the Board of Trade to be gazetted.

76. If any person who has been directed by the Court to attend for public
examination fails to attend at the time and place appointed by the order for holding
or proceeding with the same, and no good cause is shown by him for such failure,
or if before the day appointed for the examination the official receiver satisfies the
Court that such person has absconded or that there is reason for believing that he
is about to abscond with the view of avoiding examination, it shall be lawful for
the Coiu't, upon its being proved to the satisfaction of the Court that the order for
attendance at the public examination was duly served, without any further notice
to issue a warrant for the arrest of the person required to attend, or to make such
other order as the Court shall think just.

77. The notes of every public examination held pursuant to the Companies
(Winding-up) Act, 1890, shaU, after being signed as required by the said Act, be
filed with the proceedings.

Peoceedings against Delinquent Dieectoes, Peomotees, and Officees.

78. An application under sect. 10 of the Companies (Winding-up) Act, 1890,
shall in any Coui't other than the High Court be made by motion to the Court. In
the High Coiu-t the ajixjlication shall be made in accordance with the practice here-
tofore observed with reference to applications under sect. 165 of the Companies Act,
1862. Where the api^lication is made by the official receiver or liquidator he may
make a report to the Court stating- any facts and information on which he proceeds
which are verified by affidavit, or dei'ived from sworn evidence in the matter.
Where the application is made by any other person it shall be supported by
affidavit.

79. Where the application is made by motion, notice of the intended motion
shall be served on every person against whom an order is sought, not less than
eight days before the day named in the notice for hearing the motion. A copy of
every report and affidavit intended to be used in support of the motion shall be
served on every person to whom notice of motion is given not less than four days
before the hearing of the motion.



Application for
day for lioldiny
examination,
p. 527

Appointment of
time and place
foi- public ex-
amination.
Form 38 [602].
p. 527

Kotice of public
examination to
creditors and |
contributories.
p. 57

Default in

attending.
Form 41 [6151.
p. 527



Notes of exami-
nation to be
filed.

Fonn40[6211.
p. 528



Application
against delin-
quent directors,
officers, and
promoters
[s. 10 of Act of
1890].

Form 42 [588].
pp. 539, 608



Notice of
application .
pp. 540, 608



Payments into and out of a Bank.

80. All payments out of the companies liquidation account shall be made in
such manner as the Board of Trade may from time to time direct.

81. Where the liquidator is authorized to have a special bank account he shall
forthwith pay all moneys received by him into that account to the credit of the
liquidator of the company. All payments out shall be made by cheque paj-able to
order, and every cheque shall have marked or written on the face of it the name of
the company, and shall be signed by the liquidator, and shall be countersigned by
at least one member of the committee of inspection, and by such other person, if any,
as the committee of inspection may appoint.

82. Where application is made to the Board of Trade to authorize the liquidator
to make his payments into and out of a special bank account the Board of Trade
may grant such authorization for such time and on such terms as they may think
fit, and may at any time order the accoimt to be closed if they are of "opinion that
the account is no longer required for the purposes mentioned in the application.



Payments out of
Bank of Eng-
land [s. 11 of
Act of 1S90].
p. 266

Special bank
account.
p. 266

Application by
committee of
inspection and
authority for
special bank
account,
lorms -13 and 41
[246, 247].
p. 266



880



Appendix B.



Liquidator to
settle list of
contributories
[s. 13 of Act of
18M;

ss. 98 and 99 of
Act of ISG'2].
Form 45 [498].
p. 449

Appointmpnt of
time and place
for settlement
of list.

Form 4 6 [4S 9].
p. 449
Settlement of
list of con-
tributories.
rorm47[501].
p. 450

Notice to
contributories.
rorms 48, 50,
and 51 [502,
603, 504].
p. 450

Application to
the Court to
vary the list
[s. 13 and s. 21 of
Act of 1890].
p. 450

Variation of or
addition to list
of contribu-
tories.

FoiTiT.s 49 and 52
[505, 508].
p. 450

Collection and
distribution of
company's assets
by liquidator
[s. 13 of Act of
J890; s. 98 of
Act of 18621.
pp. 207, 280,
450

Powers of

liquidator

[s. 13 of Act of

1S90",

pp. 207, 280

Power of liqui-
dator to require
delivery of
property
[h. 13 of Act of
1890; s. 10(1 of
Act of 18(;2 .
Form 5:; [258].
pp. 207, 281



List ok Contributoeies.

83. The liquidator shall with all convenient speed after his appointment settle
a list of the contributories of the company, and shall appoint a da}' for that purpose.
Tlie list of contributories shall contain a statement of the address of, and the number
of shares or extent of interest to be attributed to each contributory, and shall dis-
tinguish the several classes of contributories. As regards representative contribu-
tories the liquidators shall observe the requirements of section 99 of the Companies
Act, 1862.

84. The liquidator shall give notice in writing of the time and place appointed
for the settlement of the list of contributories to every i:)erson whom he proposes to
include in the list, and shall state in the notice to each person in what character and
for what number of shares or interest he proposes to include such person in the list.

85. On the day appointed for settlement of the list of contributories, the liqui-
dator shall hear any person who objects to being settled as a contributory, and after
such hearing shall finally settle the list, which when so settled shall be the list of
contributories of the company.

86. The liquidator shall forthwith give notice to every person whom he has
finally placed on the list of contributories, stating in what character and for what
number of shares or interest he has been placed on the list, and in the notice inform
such person that any application for the removal of his name from the list or for
a variation of the list, must be made to the Court by summons within 21 days from
the date of the service on the contributory or alleged contributory of notice of the
fact that his name is settled in the list of contributories.

87. Subject to the power of the Court to extend the time or to allow an applica-
tion to be made notwitlistanding the expiration of the time limited for that purpose,
no application to the Court by any person who objects to the list of contributories
as finally settled by the liquidator shall be entertained after the expiration of 21
days from the date of the service on such person of notice of the settlement of
the list.

88. Tlie liqviidator may from time to time vary or add to the list of contributories,
but any such variation or addition shall be made in the same manner in all respects
as the settlement of the original list.

Collection and Disteibution of Assets.

89. The duties imijosed on the Court by section 98 of the Companies Act, 1862,
with regard to the collection of the assets of the company and the application of
the assets in discharge of the company's liabilities, shall be discharged by the
liquidator as an officer of the Court subject to the control of the Court.

90. For the purpose of the discharge by the liquidator of the duties imposed by
section 98 of the Companies Act, 1862, as varied by section 13 of the Companies
(Winding-up) Act, 1890, and the last preceding Rule, the liquidator shall for the
purpose of acquiring or retaining possession of the property of the company, be in
the same position as if ho were a receiver of the property appointed by the High
Court, and the Court may, on his application, enforce such acquisition or retention
accordingly.

91. The powers conferred on the Court by section 100 of the Companies Act,
1862, shall be cxerci.sed by the liquidator. Any contributory for the time being on
the list of contributories, trustee, receiver, banker, or agent or officer of a company
which is buing wound up under order of the Court shall, on notice from the liqui-
dator and within such time as he shall by notice in writing require, pay, deliver,
convey, surrender, or transfer to or into the hands of the liquidator any sum of
money or balance, books, papers, estate, or effects which hapjion to bo in his hands
for the time being and to which the company is prima facie entitled.



Calls.

92. The powers and duties of the Court in relation to making calls upon contri-
butories conferred by section 102 of the Companies Act, 1862, shall and may be
cxerci.sed by tlic li(piidator as an officer of the Court subject to the provisions of
Hcctiou 13 of the Companies (Winding-up) Act, 1890, and to the following regula-

Form54[520]. tions : —

J,. 471 (1.) Where th(; liquidator desires to make any call on the contributories, or any



Oull.M hy
liquid at or
[m. 13 of Act of
]8')0; H. lOU of
Act of 18(;2



Companies Winding-up Rules, 1890. Rules of 1890 '^si

of them, for any purpose authorized by the Acts, if there is a committee of
insppctiou ho m;iy suTimiou a meeting- of such committee for the purpose of
obtaining their sanction to the intended call.

(2.) The notice of the meeting shall bo sent to each member of the committee of Form 5.5 [5211.
insjiection in sufficient time to reach him not less than seven days before qq»
the day appointed for holding- the meeting-, and shall contain a statement
of the proposed amount of the call, and the purpose for which it is intended.
Notice of the intended call and the intended meeting- of the ci^mmitteo of
inspection shall al.so be advertised once at least in a London newspapci",
and where the winding-up is not in the High Court also in a newspaper
circulating- in the disti-ict of the Court in which the winding-up is being
conducted. The advertisement shall state the time and place of the in-
tended meeting- of the committee of inspection, and that each contributory
may either attend the said meeting and be heard, or make any communica-
tion in writing to the liquidator or members of the committee of inspection
to be laid before the meeting, in reference to the said intended call.

(3.) At the meeting of the committee of inspection any statements or representa-
tions made either to the meeting personally or addressed in writing to the
liquidator or members of the committee by any contributory shall be con-
sidered before the intended call is sanctioned.

(4.) The sanction of the committee shall be given by resolution which shall be Form 56 [522].
passed by a majority of the members present.

(5.) Where there is no committee of inspection the liquidator shall not make a
call without obtaining the leave of the Court.

93. Every application to the Court for leave to make any call on the contribu- Application to
tories, or any of them, for any purpose authorized by the Acts, shall be made by J-'^^ Court for
summons stating the proposed amount of such call, and such summons shall be callT^ oma ea
served four clear days at the least before the day appointed for making the call on Forms 5S, 59,
every contributory proposed to be included in such call ; or if the Court so directs so, uud (U
notice of such intended call may be given by advertisement, without a separate L^^*' ^26, 525,
notice to each contributory. 528].

•^ p. 471

94. When, in pursuance of a resolution of the committee of inspection or an Sei-\-ice of notice
order of the Court, a call has been made by the liquidator, a copy of the resolution of a call.

or order shall be forthwith served upon each of the contributories included in such rcpo^^ l^^l '^^

call, together with a notice from the liquidator specifying the amount or balance L ^^. -I'

due from such contributory in respect of such call, but such resolution or order •'■ "
need not be advertised unless for any special reason the Court so directs.

95. The payment of the amount due from each contributory on a call may Enforcement

be enforced by order of the Court to be made in Chambers on summons by the °* '^^^^- ^„ „ .
T -J 1. '' •' Forms 63, 61,

liquidator. ^^^e-o

[535, 537,
543].
Peoofs. p. 471

96. Every creditor shall prove his debt. 5To7°of Actof

1862, and s. 13 of

97. A debt may be proved by delivering or sending through the post in a pre- Act of ib90.]
paid letter to the official receiver, or, if a liquidator has been appointed, to the P- "°"
liquidator, an affidavit verifying the debt. Mode of proof.

•^ ° p. 360

98. The affidavit may be made by the creditor himself, or by some person Verification of
authorized by or on behalf of the creditor. If made by a person so authorized, it S^^agA
shall state his authority and means of knowledge. •'■ "

99. The affidavit shall contain or refer to a statement of account showing the Contents of
particulars of the debt, and shall specify the vouchers, if any, by which the same K" . ' ocriii'ji
can be substantiated. The official receiver or liquidator may at any time call for „„„ L J"
the production of the vouchers. P'

100. The affidavit shall state whether the creditor is or is not a secured creditor. Statement of

security.

101. A creditor shall bear the cost of proving his debt, unless the Court other- "'

wise orders. ?'360 '

102. A creditor proving his debt shall deduct therefrom all trade discounts, but Discount.
he shall not be compelled to deduct any discount, not exceeding live per centum on p, 36O
the net amount of his claim, which he may have agreed to allow for payment

in cash.

P. 3 L



882



Appendix B.



Periodical pay-
ments,
p. 361



Interest.
pp. 361, 369



Proof for debt
payable at a
future time.
p. 361



Wortmen's
■wages.

Form 6 7 [4111.
p. 361



Production of
bills of exchange
and promissory
notes.
p. 361



Time for lodging

proofs.

p. 361

Transmission of
proofs to liqui-
dator.
p. 361



103. When any rent or other payment falls due at stated periods, and the order
to wind up is made at any time other than one of those periods, the person entitled
to the rent or payment may prove for a proportionate part thereof up to the date of
the winding-up order as if the rent or payment grew due from day to day.

104. On any debt or sum certain, payable at a certain time or otherwise, whereon
interest is not reserved or agreed for, and which is overdue at the date of the
winding-up order, the creditor may prove for interest at a rate not exceeding four
per centum per annum to the date of the commencement of the winding-up from
the time when the debt or sum was payable, if the debt or sum is payable by virtue
of a written instrument at a certain time, and if payable otherwise, then from the
time when a demand in writing has been made giving notice that interest will be
claimed from the date of the demand until the time of payment.

105. A creditor may prove for a debt not payable when the winding-up order
was made, as if [it were payable immediately, subject to a rebate of interest at the
rate of five per centum per annum computed from the date of the winding-up to the
time when the debt would have become payable according to the terms on which it



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 118 of 134)