Francis Beaufort Palmer.

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

. (page 120 of 134)
Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 120 of 134)
Font size
QR-code for this ebook


reports, exhibits, admissions, memorandums, and office copies of affidavits, examinations, ceedings.
depositions, and certificates, and all other documents relating to the icinding-up of any
company shall be placed on the file by the official receiver or the liquidator, as far as may
he in continuous order. Every contributory of the company, and every creditor thereof
whose proof or claim has been admitted, and every person who has been a director or officer
of the company, shall be entitled, at all reasonable times, to inspect the 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 threepence
per folio of seventy -tioo words ; and the file shall he produced in Court, or before the
judge, and otherwise as occasion may require.

{Annulled by R. 34 of April, 1892. See now Ji. 11 of April, 1892, and R. 1
of November, 1895.)

147. — (1 .) Whenever the London Gazette contains any advertisement relating Memorandum
to any winding-up to which these rules apply, the liquidator shall file with the of advertise-
proceedings a memorandum referring to and giving the date of the advertisement. ments.

(2.) In the case of an advertisement in a local paper, the official receiver shall Form 87 [IG].
keep a copy of the paper, and a memorandum referring to and giving the date of p. 32
the advertisement shall be placed on the file.

(3.) For this purpose one copy of each local paper in which any advertisement
relating to any winding-up proceeding in the Court is inserted, shall be left with
the official receiver by the person who inserts the advertisement.

(4.) A memorandum under this rule shall be prima facie evidence that the
advertisement to which it refers was duly inserted in the issue of the Gazette
or newspaper mentioned in. it.

Release of Liquidator.

148. A liquidator, before making application to the Board of Trade for his Application for
release, shall give notice of his intention so to do to all the creditors who have r^ ,^f^f i t f
proved theii" debts and to all the contributories, and shall send with the notice isgo?'^

a summary of his receipts and payments as liquidator. Fomis 7S and 79

I ui/ij, oyy J ,

149. "Where the Board of Trade have granted to a liquidator his release, a notice P- ^°°

of the order granting the release shall be gazetted. The liquidator shall provide Gazetting
the requisite stamp fee for the Gazette, which he may charge against the company's release.
assets. p. 596

Books to be kept, and Returns made, by Officers of Courts.

150. In the High Court the chief clerks of the Chanceiy Division, and in the Books to be kept
district registries of the Hifjh Court at Liverpool and Manchester respectively the by officers of
district registrars of the High Court, and in a Court other than the High Court, ?°^q^'£ a + f
the registrar or other officer of the Court whose duty it is to perform under direction is'jo.]

of the judge the duties which in a County Coiu-t are performed by the registrar, p. 23
shall keep books according to the forms in the Appendix, and the particulars given Forms SS and 89
under the different heads in such books shall be entered forthwith after each pro- [8, 7].
ceeding has been concluded.



888



Appendix B.



Extracts to be 151, xiic officers of the Courts whose duty it is to keep the books prescribed by
sent to Board these rules shall make and transmit to the Board of Trade such extracts from their
of Trade. books, and shall furnish the Board of Trade with such information and returns as

P- 23 the Board of Trade may from time to time require.



Gazetting
notices,
l^orni 86 [15].
p. 32
E.e-2'azettino'.



GAZETTmO.

152. All notices subsequent to the making' by the Court of a winding-up order
in pursuance of the Act or these rules requiring publication in the Loudon Gazette
shall be gazetted by the Board of Trade.

153. Where any winding-up order is amended, and also in any case in which
any matter which has been gazetted has been amended or altered, or in which a
matter has been wrongly or inaccurately gazetted, the Board of Trade shall re- gazette
such order or matter with the necessary amendments and alterations in the pre-
scribed form, at the expense of the company's assets, or otherwise as the Board of
Trade may direct.



Remuneration
of liquidator,
pp. 230, 232

p. 230

Limit of re-
muneration.
p. 230

Dealings with

assets.

pp. 220, 275,

291



L'^qnidator not
to purchase
fro in his
emplnyer or
paitnfT without
Court's sanction.
p. 279

Committee of
inspection,
pp. 220, 279



Cists of ohtain-
jii^ sanction.
pp. 220, 279

Sanction of pay-
nicntt to
nic'inb»rs of
comniittoc of
inHj)' ctiiiTi.
pp. 220, 281



Discharge of
costs, &c.



LiQUIDATOES AND COMMITTEES OF INSPECTION.

154. — (1.) The remuneration of a liquidator shall, unless the Court shall otherwise
order, be fixed by the committee of inspection, and shall be in the nature of a
commission or percentage of which one part shall be payable on the amount realized
after deducting the sums (if any) paid to secured creditors out of the proceeds of
their securities and the other part on the amount distributed in dividend.

(2.) If there is no committee of inspection the remuneration of the liquidator
shall be in accordance with the scale of percentage payable for realizations and
distributions by the official receiver as liquidator.

155. Except as provided by the Acts or these Rules, no liquidator shall be
entitled to receive out of the estate any remiuieration for services rendered to the
company, except the remuneration to which under the Acts and Rules he is entitled
as liquidator.

156. Neither the liquidator nor any member of the committee of inspection of a
company shall, while acting as liqrddator or member of such committee, except by
leave of the Court, either directly or indirectly, by himself or any partner, clerk,
agent, or servant, become purchaser of any part of the company's assets. Any
such purchase made contrary to the provisions of this Rule may be set aside by
the Court on the application of the Board of Trade or any creditor or contributory,
and the Court may make such order as to costs as the Court shall think fit.

157. "^liere the liquidator carries on the business of the company, he shall not,
without the express sanction of the Court, purchase goods for the carrying on of
such business from any person whose coimection with the liquidator is of such a
nature as would result in the liquidator obtaining any portion of the profit (if any)
arising out of the transaction.

158. No member of a committee of inspection, in a winding-up shall, except
under and with the sanction of the Court, directly or indirectly, by himself or any
employer, partner, clerk, agent, or servant, be entitled to derive any profit from
any transaction arising out of the winding-uj), or to receive out of the assets any
payment for services rendered by him in connection with the administration of
the assets, or for any goods supplied by him to the liquidator for or on account
of the company. If it appears to the Board of Trade that any profit or payment
has been made contrary to the provisions of this ride they may disallow such
payment or recover such profit, as the case may be, on the audit of the liquidator's
accounts.

159. In any case in which the sanction of the Court is obtained under the two
la^t preceding rules, the cost of obtaining such sanction shall be borne by the
person in whose interest such sanction is obtained, and shall not be payable out of
the conqjany's assets.

160. Whore the sanction of the Court to a payment to a member of a committee
of inspection for services rendered by him in connection with the administration of
tho company's assets is obtained, the order of the Court shall sjiecify the nature of
tlie KTviccs, jiiid shall f)idy bo given whtTC the service performed is of a special
nature. No jiayiiu lit shall, imdcr any circumstances, be allowed to a member of
a cojniuittcc for services rendered liy liim in the discharge of the duties attaching to
his oflioe as a member of such committee.

161. — (1.) AVhero a liquidator is appointed by the Court, the official receiver
Bhall fort )i with put the liquidator into possession of all property of the company of



Companies "Winding-up Rules, 1890. Rules of 1890 889

which the official receiver may have custody ; provided that such liquidator shall before assets
have, before the assets are handed over to him by the official receiver, discharged handed over
any balance due to the official receiver on account of fees, costs, and charges pro- to Hquidutor.
perly incurred by him, and on account of any advances properly made by liim in pp. 141, 209
respect of the company, together with interest on such advances at the rate of four
pounds per centum per annum ; and the liquidator shall pay all fees, costs, and
charges of the official receiver -nhich may not have been discharged by the liqui-
dator before being put into possession of the property of the company, and whether
incurred before or after he has been put into such possession.

(2.) The official receiver shall be deemed to have a lien upon the company's assets
until such balance shall have been paid and the other liabilities shall have been dis -
charged.

(3.) It shall be the duty of the official receiver, if so requested by the liquidator,
to communicate to the liquidator all such information respecting the estate and
affairs of the company as may be necessary or conducive to the due discharge of the
duties of the liquidator.

Official Eeceivees, and Board of Trade.

162. — (1.) Judicial notice shall be taken of the appointment of the official re- Appointment,
ceivors appointed by the Board of Trade. p. 141

(2.) When the Board of Trade appoints any officer to act as deputy for or in the
place of an official receiver, notice thereof shall be given by letter to the Court to
which such official receiver is or was attached. The letter shall specify the duration
of such acting appointment.

(3.) Any person so appointed shall, diiring his tenure of office, have all the status,
rights, and powers, and be subject to all the liabilities of an official receiver.

163. — (1.) Where an official receiver is removed from his office by the Board of Removal.
Trade, notice of the order removing him shall be communicated by letter to the p. 141
Court to which the official receiver was attached.

164. The Board of Trade may, by general or special directions, determine what Personal per-
acts or duties of the official receiver in relation to the winding-up of companies are formance of
to be performed by him in person, and in what cases he may discharge his functions duties,
through the agency of his clerks or other persons in his regular emjjloy, or under P- 1^1

his official control.

165. An assistant official receiver, appointed by the Board of Trade, shall be an Assistant
officer of the Court, like the official receiver to whom he is assistant, and, subject to official
the directions of the Board of Trade, he may represent the official receiver in all receivers,
proceedings in Court, or in any administrative or other matter. Judicial notice p. 141
shall be taken of the appointment of an assistant official receiver, and he may be
removed in the same manner as is jDrovided in the case of an official receiver.

166. In the absence of the official receiver anj' officer of the Board of Trade duly Power of officers
authorized for the purpose by the Board of Trade, and any clerk of the official ^^.^jj^^i'l^^j,"^
receiver duly authorized by him in writing, may by leave of the Court act on behalf official' receivers'
of the official receiver, and take part for him in any public or other examination clerks in certain

and in any unopposed application to the Court. cm'^? to act for

•^ ^ ^ '■ '■ official receivers.

V 142

167. "^^^lere a company against whom a winding-up order has been made has j),iti,.j^,ijei.(;no
no available assets, the official receiver shall not be required to incur any expense assets!

in relation to the winding-up without the express directions of the Board of Trade, p. 141

168. — (1.) Where a liquidator is appointed by the Court, the official receiver Acoountin? by

shall account to the liquidator. official receiver.

(2.) If the liquidator is dissatisfied with the account or any part thereof, he may pp. 141, 234

report the matter to the Board of Trade, who shall take such action (if any) thereon

as it may deem expedient.

(3.) The provisions of these rules as to liquidators and their accounts shall not

apply to the official receiver when he is liquidator, but he shall account in such .

manner as the Board of Trade may from time to time direct. _ ^^ ^Pt joj. j3oai,i

169. Where there is no committee of inspection any functions of the committee of Trade where
of inspection which devolve on the Board of Trade may, subject to the dii-ections of no comrnittee of
the Board, be exercised by the official receiver. nD^'l92° 201

219

170. An appeal in the High Court against a decision of the Board of Trade, or

an appeal to the Court from an act or decision of the official receiver, shall be Bo^j^of ^^q
brought within 21 days from the time when the decision or act appealed against is and official
done, pronoimced, or made. receiver.

' ^ ' p. 578



890



Appendix B.



Applications
under s. 25 (2)
of Actof 18'JO.
p. 243



171. — (1.) An application by the Board of Trade to the Court to examine on oath
the liquidator or any other person pursuant to section 25 of the Companies (Winding-
up) Act, 18911, shall bo made ex parte, and shall be supported by a report to the
Court filed with the proceedings, stating the circumstances in which the application
is made.

(2.) The report may be signed by any person duly authorized to sign documents
on behalf of the Board of Trade ; and shall for the purposes of such application be
prima facie evidence of the statements therein contained.



Special Manager.

Accounts. 172. Every special manager shall account to the official receiver, and such

rorm85[99j. special manager's accounts shall be verified by affidavit, and, when approved by

the official receiver, the totals of the receipts and payments shall be added to the

official receiver's accounts.



Attendance at
proceedings.
p. 137



Solicitor of
liquidator,
pp. 137, 201



Attendance and Appeaeance of Parties, &c.

173. Every person for the time being on the list of contributories of the company
and every person whose proof has been admitted shall be at libei'ty, at his own
expense, to attend proceedings, 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 Court shall be of opinion that the attend-
ance of any such person upon any proceedings 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.

173a. \_This is the Rule of Maij I9th, 1896.]

174. Where the attendance of the liquidator's solicitor is required on any pro-
ceeding in Court or Chambers, the liquidator need not attend in person, except in
cases where his presence is necessary in addition to that of his solicitor, or the
Court du-ects him to attend.



Board of
Trade orders,
&c.
p. 19

Enlargement or
aliridgment of
time.

p. 24

Formal defect
not to invalidate
proceeding's.

pp. 24, 73



Application
of existing
procedure,
pp. 9, 19, 606,
655



PetitionB in
l,iverj)ool and
ManrhetttT
Dihtritrt
KeiyiHtriei.
p. 44



Miscellaneous Matters.

175. The Board of Trade may from time to time issue general orders or regu-
lations for the purpose of regulating any matters under the Act or these Rules
which are of an administrative and not of a judicial character. Judicial notice shall
be taken of any general orders or regulations which are printed by the Queen's
printers, and purport to bo issued under the authority of the Board of Trade.

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

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

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

178. In all proceedings in or before the Court, or any judge or officer thereof, or
over which the Court has jurisdiction under the Acts and Rules, where no other
provision is made by the Acts or these Rules, the ])ractice, proceeding, and regula-
tions shall, unless the Court otherwise in any special case directs, in the High Court
and Stannaries Court be in accordance with the Rules of the Supreme Court and
practice of the High Court, and in a County Court and Palatine Cotirt in accord-
ance, as far as practicable, with the existing Rules and practice of the Court in
proceedings for the administration of assets by the Court.

(An to itaiicfi, aee Stannaries Court {Abolition) Act, 1896, and order and rules
thereunder.)

179. The provisions of Rule 2 of the Rules of the Supreme Court, 18S7, relating
to petitions in the district registries of Liverpool and Manchester, shall apply to
petitions presented in those registries under the Acts and these Rules.



Companies Winding-up Rules, 1890. Rules of 1890 891

180. The Rules contained in the General Order of the Court of Chancery of 1802, J^^J^^^^^S^^

and the forms prescribed by such Rules, shall from and after the comiricnf;emcnt of and'not to apply

these Rulca cease to have effect or apply in the winding-up of any company wound in compulsory

up under the order of the Coui't where the wiuding-up order is made after the Slst win(lin','s-up

of December, 1890. ^f " Ueoembor

(Signed) Halsbtjey, C. ' ' 55^
I concur.
(Signed) M. E. HicKS-BEAcn,

President of the Board of Trade.
The 29th of November, 1890.



APPENDIX OF FORMS.

No. 1.— General title (High Court). [Annulled by R. 36 of April, 1892. See
now Form 1 of April, 1892, Form 1.]

No. 2.— General title (County Court). [Form 4.]
No. 3.— Order of transfer. [Form 578.]

No. 4. — Notice of transfer of proceedings to the Boai'd of Trade and official
receiver. [Form 579.]

No. 5. — Appointment of shorthand writer to take examination. [Form 612.]
No. 6. — Declaration by shorthand writer. [Form 613.]

No. 7. — Notes of public examination where a shorthand writer is appointed.
[Form 618.]

No. 8. — Notes of public examination where shorthand writer is not appointed.
[Form 620.]

No. 9. — Return by taxing officer. [Form 677.]
No. 10. — Certificate of taxation. [Form 670.]
No. 11. — Register to be kept by taxing officer. [Form 676.]
No. 12.— Petition. [Form 18.]

No. 13. — Petition by unpaid creditor on simple contract. [Form 19.]
No. 14. — Affidavit of service of petition on members, officers, or servants.
[Form 38.]

No. 15. — Affidavit of service of petition on liquidator. [Form 39.]
No. 15a. — Notice of intention to appear on petition. [Form 57, added by R. 36
of April, 1892.]

No. 16. — Advertisement of petition. [Annulled by R. 36 of April, 1892. See
now Form 36.]

No. 16a. — List of parties attending the hearing of a petition. [Form 58, added
by R. 36 of April, 1892.]

No. 17. — Affidavit verifying petition. [Form 49.]
No. 18. — Order for winding-up by the Court. [Form 72.]
No. 19. — Order for winding-up, subject to supervision. [Form 767.]
No. 19a.- — Notification to official receiver of orders pronounced on petitions for
winding-up. [Form 71, added by R. 36 of April, 1892.]

No. 19b. — Notification to official receiver of order pronounced'for appointment of
official receiver as provisional liquidator prior to winding-up oi'der being made.
[Form 84, added by R. 36 of April, 1892.]
No. 20. — Notice of order to wind up (for local jiaper). [Form 78.]
No. 21. — Order appointing the official receiver as provisional liquidator after
presentation of petition, and before order to wind up. [Form 81.]
No. 22. — Notice to creditors of first meeting. [Form 154.]
No. 23. — Notice to contributories of first meeting. [Form 155.]
No. 24. — Notice to directors and officers of company to attend first meeting of
creditors or contributories. [Form 156.]

No. 25. — Authority to deputy to act as chau-man of meeting and use proxies.
[Form 162.]



S92 Appendix B.

No. 26. — Notice of meeting' (general form). [Form 396.]

No. 27. — Affidavit of postage of notices of meeting. [Form 399.]

No. 28. — Certificate of postage of notices (general). [Form 161.]

No. 29. — Memorandum of adjournment of first or other meeting. [Form 163.]

No. 30. — Memorandum of proceedings at adjourned first meeting (no quorum).

[Form 165.]
No. 31 . — List of creditors or contributories assembled to be used at every meeting.

[Foi-m 166.]

No. 32. — Report of result of meeting of creditors or contributories. [Form

169.]

No. 33. — Statement of affairs. [Form 149, which contains the alterations

made by Er. of April, 1892, and Forms 33a, 33b, and 33c.]

No. 33a.— ,

.vq- „„ I Alterations in statement of afPairs made by E,. 36 of April, 1892.

( rincorporated in Form 149.]
No. 33c.— ) ^ ^ -'

No. 34. — Order appointing liquidator. [Form 177.]

No. 35. — Certificate that liquidator or special manager has given security.

[Form 188.]
No. 36. — Advertisement of appointment of liquidator. [Form 184.]
No. 37. — Order directing a public examination. [Form 600.]
No. 38. — Order appointing a time for public examination. [Form 602.]
No. 38a. — Notice to attend public examination. [Form 603, added by E. 36 of

April, 1892.]

No. 39. — Eeport to the Court where person examined refuses to answer to

satisfaction of registrar or officer. [Form 616.]

No. 40. — Order of Court that examination is concluded. [Form 621.]

No. 41. — Warrant against person who fails to attend examination. [Form 615.]

No. 42.— Summons for persons to attend at chambers to be examined. [Form

588.]

No. 43. — Application to Board of Trade to authorize a special bank account.

[Form 246.]

No. 44. — Order of Board of Trade for special bank account. [Form 247.]
No. 45. — List of contributories to be made out by liquidator. [Form 498.]
No. 46.- — Notice to contributories of appointment to settle list of contributories.

[Form 499.]

No. 47. — Certificate of liquidator of final settlement of the list of contributories.

[Form 501.]

No. 48. — Notice to contributory of final settlement of list of contributories, and

that his name is included. [Form 502.]
No. 49. — Supplemental list of contributories. [Form 505.]
No. 50. — Affidavit of service of notice to contributory. [Form 503.]
No. 61. — The schedule referred to in Form No. 50. [Form 504.]
No. 52. — Order on application to vary list of contributories. [Form 508.]
No. 53. — Notice by liquidator requiring payment of money or delivery of books,

&c. to liquidator. [Form 258.]

No. 54. — Notice to each member of committee of in.'spcction of meeting for

eanction to proposed call. [Form 520.]

No. 55. — Advertisement of meeting of committee of inspection. [Form 521,

being the new form under Board of Trade Order of 31st January, 1894.]

No. 50. — Eesolution of committee of inspection sanctioning call. [Form 522.]
No. 57. — Nf)tice of call sauctioncd by committee of inspection to be sent to con-
tributory. [Fonn 523.]

No. 58. — Sninwonn for intended call .

{Annulled hy li. 30 of April, 1892. See new Form 524.)
No. 68. — Form of Summons (general). [Form 10, added by E. 36 of April,

1892.].



Companies Winding-itp Rules, 1890. Rules of 1890 893

No. 59. — Affidavit of liquidator in support of proposal for call. [Purm 526.]

No. 60. — Advertisement of intended call. [Form 525.]

No. 61. — Order sanctioning a call. [Form 528.]



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 120 of 134)