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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of , 189 — , and filed on the day of , 189 — , [within four

days after presentation of peton~\.

The afft of , filed on the day of , proves the service of

the peton on the coy, on the day of \_two clear days~\, or the

solors of the coy have undertaken to instruct counsel to ajDpear on the

hearing of the peton.

(Signed) ,

A. B.,

Solicitor for the Petitioner.

Date .

The above-mentioned newspapers and aift produced to me and found

correct.

Registrar.

Copies of Petition.

E. 37 of 1890. — Every contributory or creditor of the company shall be entitled to
be furnished, by the solicitor of the petitioner, with a copy of the petition, within



46



WINDING-UP BY THE COUET. [ChAP. III.



24 hours after requiring the same, on paying the rate of id. per folio of 72 words
for such copy.

As to the duty of the solicitor to ascertain that the applicants are either creditors
or contributories, see Cheltenham, ^-c. Wagon Co., 8 Eq. 583,



Form 18.

Petition
(general
form).
Form 12 of
1890.



189 — . \_Here state letter and number,']
In the \_state name of Court, and, in the High Court, the Divisio7i and
Judge'].

In the matter of the Companies Acts, 1862 to 1890,
and

In the matter of the Company, Limited [or as the case may he].

To [insert title of Court, p. 20].

The humble peton of [insert full name, title, Sec. of petitioner]
showeth as foUows : —

1. The Coy, Limtd (hnftr called the coy) was in the month

of incorporated under the Companies Acts.

2. The registered office of the coy is at [state the full address of the
registered office so as siifficiently to show the district in lohich it is situate].

3. The nominal capital of the coy is 1., divided into shares

of 1, each. The amount of the capital paid up or credited as paid

up is 1.

4. The objects for which the coy was established are as follows: —

To , and other objects set forth in the memorandum of association

thereof.

[Here set out i^i paragraphs the facts on which the petr relies, and con-
clude as folloivs] : —

Your petr therefore humbly prays as follows : —

(1) That the Coy, Limtd, may be woimd up by the Court

under the provisions of the Companies Acts, 1862 to 1890 :

(2) Or that such other order may be made in the premises as shall
be just.

Note. — It is intended to serve this peton on . [This note tvill

he tinnecessary if the coy is petr].

If the objects are set out at unnecessary length, the cost will be reduced on
taxation in accordance with directions which have been given by the judge.
Tlic above form is given in the Appendix to the Rules of 1890, and do new form
is given in the Rules of April, 1892. By R. 6 (2) of April, 1892, although the
petition is to have a distinctive number assigned to it, there is now no leilcring in the
reference to the record. Moreover, all petitions will in future be assigned to Mr.
Justice Vaughan "Williams or other the winding-up judge for the time being. The
title, when the petition is in the High Court, will therefore not refer to the Division
as stated in the form, but, in accordance with R. G (1) and Form 1 respectively, of
1892, will be as stated at the head of Form 10, supra.

As to the title of petitions to wind up industrial and provident societies, and
registered building societies, see Form 1.



WINDING-UP PETITIONS. 47

{Title as in No. 18.)* Form 19.



Paragraplis 1, 2, 3, and 4 as in No, 18. Petition by

5. The coy is indebted to your petr in tlie sum of 1, for [^staie unpaid

consideration for the cleht, tvith particulars, so as to establish thai the debt gimpie
claimed is diie^. contract.

6. Your petr lias made applicon to tlie coy for payment of his ^^g™ ' °
debt, but the coy has failed and neglected to pay the same or any part
thereof.

7. The coy is [insolvent and] unable to pay its debts.

8. In the circumstances it is just and equitable that the coy should
be wound up.

Your petr therefore, &c. [as in No. 18].*

* The last form. As to the title, &c., see note to last form.



E.ff., paragraphs 5, 6, and 7 may be as follows : —

"5. The company is indebted to your petitioner in the sum of 1, for pro-
curing the insertion and publication of the company's prospectus in divers news-
papers pursuant to orders given to your petitioner by the authority and on behalf of
the company.

"6. Pull particulars of your petitioner's charge for procuring the insertion of
the said prosj)ectus in the newspapers aforesaid are contained in an account which
was long since furnished bj'- your petitioner to the company. Such charges are
fair and reasonable.

" 7. Your petitioner has made repeated and urgent applications to the company

for payment of the said sum of 1., but the company has neglected to pay or

satisfy the same."

As to petitions by creditors in respect of debts less than 601., see supra, p. 35.



In the High Court of Justice. No. — , of 189 —

Companies (Winding-up).



Form 20.



Mr. Justice Vaughan Williams. judoTnent



In the matter of the Companies Acts, 1862 to 1890,
and
In the matter of The [insert full iiame of company\ Company, Limited.

To Her Majesty's High Court of Justice.

The humble peton of , of , showeth as follows : —

1 . The Coy, Limtd, (hnftr called the coy) was in the month of

, 1878, incorporated under the Cos Acts [1862 and 1867], as a

coy limtd by shares.

2. The registered office of the coy is situated at .



creditor.



3. The nominal capital of the coy is 20,000Z., divided into 2,000
shares of 10^. each. The whole of the said shares have been



48 WINDING-UP BY THE COURT. [ChAP. III.

issued, and the amount of the capital paid up or credited as paid up is
1.

4. The objects for "svhich the coy was estahlished are as follows : —
(a) To, &c.

Here the objects will be set out, or the paragraph may state the leading objects,
and conclude, " and other objects set forth in the memorandum of association
thereof." But of course there may be cases in which it is material to state all the
objects, e.g., when it is contended that the substratum of the company is gone.

As to costs where objects stated at undue length, see note to Form 18.

5. Your petr is the holder for valuable conson of a bill of exchange,

dated the day of , for 250^., payable six months after date,

drawn by upon and accepted by the coy, and indorsed by divers

persons. The sd bill was dishonoured at maturity.

6. On or about the day of , your petr duly commenced and

prosecuted an action in the Queen's Bench Division of this Court
against the 'coy for the recovery of the amount of the sd bill and
interest.

7. The coy failed to appear to the writ in the sd action, and your

petr on the day of signed and recovered judgment in the

sd action against the coy for the sum of 2b\l. 5s. and costs, which
costs were afterwards taxed and certified to amount to Al. 6s., making
together with the sd sum of 25H. 65. the sum of 255?. lis. recovered
by the sd judgment.

8. Your petr on the day of sued out a writ oi fieri facias

under the sd judgment ; but on the day of the sheriff of the

county of , to whom the sd writ was directed, returned the same

wholly unsatisfied, the coy having no goods or chattels within his
bailiwick upon which execution could be levied.

See sect. 80 of 1862, sub-sect. (2), supra.

9. The said judgment is wholly unpaid and unsatisfied, and the
amount thereof is justly due and owing to your petr.

10. The coy is [insolvent and] unable to pay its debts.
See sect. 79 of 1862, sub-sect. (4), supra, p. 34.

11. In the circumstances it is just and equitable that the coy should
be wound up.

Your petr therefore humbly prays as follows : —

(1.) That The Coy, Limtd, may be wound up by the Ct

under the provisions of the Cos Acts, 1862 to 1890.
(2.) Or that such other order may be made in the promises as to the

Ct shall seem meet.

And your petr will ever pray, &c.

Note. — It is intended to serve this peton on The Coy, Limtd.

It may HomotimcH bo deemed expedient to allege that the appointment of a pro-
visional liquidator is desirable (see Form 23, infra), and to pray, inter alia, "that a



WINDING-UP PETITIONS. 49

provisional liquidator may be forthwith appoiuted." But the Court can appoint
without notice to any person.

The jurisdiction to appoint a provisional otHcial liquidator was conferred by
sects. 85 and 92 of 1862. And see sects. 4 and 5 of the Act of 1890, and R. 32 of
1890. The subject is more fully dealt with in the notes, pp. 9G et seq.



1 to 4. — Incorporation, office, objects, capital, &c. Form 21.

5. In the month of Sept. 1884, an action was commenced against petition by

the coy by Gr. of in the Queen's Bench Division of the High assignee of

Court of Justice, for the recovery of an amount of 1, owing to the ]^q^^^

sd Gr. by the coy.

G. The coy appeared to the writ in the sd action, and by an order of

Master F., dated the day of , 1884, the sd Gr. obtained leave

to sign judgment for the amount endorsed on the writ, with interest
(if any) and costs to be taxed; and by a judgment bearing date the

day of , 1884, in the same action, it was adjudged that the

sd G. recover against the coy 1, and costs, which costs were after-
wards taxed and certified to amount to 1., making together with

the sd sum of 1, the simi of 125/. recovered by the sd judgment.

7. Under and by virtue of an indenture of assignment bearing date

the day of , and made between the sd Gr. of the one part and

your petr of the other part, the sd G. absolutely assigned the said
judgment debt and costs, together with the sd judgment, to your petr.

8. Due notice of such assignment was given by your petr to the coy,
and your petr aj)plied to the coy for payment of the amount thof, but
the coy has neglected to pay the same. The sd judgment is wholly
unpaid and unsatisfied, and the amount thof is justly due and owing
to your petr. The coy has no assets upon which your petr can levy
execution.

9. The coy is unable to pay its debts, and it is just and equitable
that the coy should be wound up.



In the High Court of Justice. Form 22.

Companies (Winding-up). Petition of

Mr. Justice Yaughan Williams. poHcy holder

. in life assur-

In the matter of the Companies Acts, 1862 to 1890, ance com-

and pa°y-

In the matter of the Assurance Company,

and
In the matter of the Life Assurance Companies Acts, 1870 and 1872.
To &c.

The humble peton of , of , a policy holder of the above-
named coy, showeth as follows : —
1, 2, 3, 4 as in Form 18.
P. E



50



WINDING-UP BY THE COURT. [ClIAP. III.



5. Your petr is a policy holder of the coy. He effected this policy in
the year 1875, and under such j)olicy the coy, in consideration of an

annual premium of Z., undertook to pay to your petr's exors or

admors, within three calendar months after proof of your petr's death,

the sum of 1. Your petr has duly and punctually paid the

premium on the sd policy, and such policy is still in force.

6. The coy has issued a large number of policies, and the total
amount now issued exceeds 1.

7. The coy is possessed of considerahle assets, including upwards of
-I. uncalled capital.



8. The coy is insolvent, and it is just and equitable that the coy
should be wound up.
Your petr, &.c.

As to a petition by a cuiTcnt policy holder on the ground of an insurance com-
pany's insolvency, see sect. 21 of the Life Assurance Companies Act, 1870, and
supra, p. 38.

Tests of insolvency considered: London and Manchester Assoc, 1 C. D. 466. A
voluntary winding-up may be prima facie evidence of insolvency. British Alliance
Corp., 9 0. D. 635.

The Court is not to give a hearing to the petition until security for costs for such
amount as the judge shall think reasonable shall be given, and until a prima facie
case is established to the satisfaction of the judge : L. A. C. A. 1870, s. 21.

The fiat will be as follows : —

"The Court doth order that this petition be referred to chambers to inquire
whether a prima facie case within the meaning of sect. 21 of the Life Assurance
Acts, 1870 and 1872, is established, and to consider the security for costs to be
given pursuant to the same section, and the result of such inquiry is to be certified
to the Court."

The registrar will, in due course, certify, e.g. as follows: —

" In pursuance of the directions given to me by his lordship, Mr. Justice , I

certify that a prima facie case that the within-named company is insolvent has been
established to the satisfaction of the judge, and security for costs has been given to
the amount of [100/.]. The evidence produced consists of the following affidavits
of the following persons [specif i/ them"]. Receipt of cashier of the Bank of England
[10] Nov. [1880] for 100/. deposited in the matter of, &c., under Rule, &c."

The company is not heard on the preliminary inquiry, for the petitioner is only
required to make out a, prima facie case.

Upon the result of the proceedings in chambers the petition is answered for
hearing in the usual way.



Form 23.

Petition by

debenture

holder.



1. The Coy, Limtd (hnftr called the coy), was incorporated,

as a coy limited by shares, under the Cos Acts, 1862 and 18G7,

in tlio month of , 1873, for the purpose of acquiring and working

certain patents for the manufacture of from , and for other

purposes set forth in the memorandum of association thof. The regis-
tered ofTico of the coy is situate at .



2. The nominal capital of the coy was stated in the memorandum of
association thof to bo 100,000/., divided into 10,000 shares of 10/. each.



WINDING-UP PETITIONS. 51

3. Shortly after the incorj^oration thof, the coy commenced and has
since carried on business. Upwards of 9,000 of its shares have been
issued, and there is upwards of 13,000/. uncalled capital duo in respect
thof.

4. The coy has raised money by the issue of 300 debentures, each
for securing the principal sum of 100/. and interest. By such deben-
tures the coy promised to pay the sums therein resply mentd on the

day of , and interest thereon in the meantime at the rate of

7 p.c. p. a., on presentation of the coupons attached thereto on the days
named in such coupons resply, and the coy thereby charged all its
property with the payment of the sd principal sums and interest.

5. The coupons attached to the sd debentures were for interest on
the principal sums iu the debentures mentd, at the rate afsd, and
purport to be payable on the 5th April and 5th Oct. in every year.

6. Your petr advanced 2,000/. to the coy on the security of 20 sucli
debentures as afsd, and these debentures are still held by him.

7. On the day of last your petr applied to the coy for

payment of the interest which accrued due on your petr's sd deben-
tures on the 5th day of April, 1888. The coy has not paid such
interest, and there now remains due and owing to your petr in respect
thof the sum of 74/. Os. 5d.

8. The coy is indebted to other debenture holders in respect of the
interest on debentures issued by it, and also to divers other persons,
and it is unable to pay its debts.

9. The security comprised in the debenture is totally insufficient to
provide for the payment thof iu full, and the debenture holders will
have to look for the most part to the balance of the capital at present
uncalled. The creditors of the coy other than the debenture holders
are for sums only amounting to 3,000/., or thereabouts. Some of the
members of the coy have taken proceedings, with a view to obtaining
the cancellation of their contracts to take shares, on the ground of
misrepresentation in the coy's prospectus, and others are threatening
to take proceedings.

10. Several actions, brought by creditors against the coy, are now
pending, and unless such actions are restrained the coy will shortly be
liable to have judgment entered and execution issued against it.

11. Having regard to all the circumstances, it is just and equitable
that the coy should be woimd up by the Ct.

12. It is important and in the interest of the creditors and members
of the coy that the property thof, and in particular certain barrels of

, should be taken possession of by some person appointed by

the Ct.

Your petr therefore humbly prays : — &c.

The holder of a debentui-e to bearer may x^cUtion. lie Olatke Silver Co., 27
C. D. 278.

e2



62



WINDING-UP BY THE COURT. [ChAP. III.



A debenture holder who cannot get paid may present a winding-up petition.
But he is not entitled to an order against the wishes of the majority of the creditors.
Western of Canada Co., 17 Eq. 1 ; St. Thomas' Bock Co., 2 C. D. 117 ; West Hartle-
pool Iron Works Co., 10 Ch. 618 ; Uruguay Central Co., 11 C. D. 372 ; Chapel House
Co., 24 C. Div. 259. The holder of a mortgage debenture can apply for and obtain
a winding-up order without giving uj) or affecting his security. Moor v. Anglo-
Italian Bank, 10 C. D. 681. Even after a receiver has been appointed. Borough of
Portsmouth Tramways, (1892) 2 Ch. 362.



Form 24.

Petition
where prior
petitioner
settled.



1 to 6. \_State j}etr^s case for ivinding-up.~\

7. On the day of , A., of , presented a peton to



this



Ct, intituled in the above matters, and alleging, among other things,

that the coy was indebted to him in the sum of 1., and that

repeated applicons had been made for the payment thof, and that the
coy was unable to pay its debts, and praying to the effect hnftr prayed.
But the coy is about to pay off the amount due from it to the sd A., or
to make some other arrangement with a view to the withdrawal of the
sd peton, and the sd peton is not being bona fide prosecuted.

The presentation of a subsequent petition may be justifiable, e.g., where there is
reason to believe that the first petition is collusive. Humher Iron Works Co., 2 Eq.
15; United Service Co., 7 Eq. 76 ; on appeal, 5 Ch. 707. "Where a second petition
is presented, the second petitioner must allege and be prepared to make out an
objection to the prior petition, e.g., collusion. Norton Iron Co., 47 L. J., Ch. 91 ;
W. N. (1877) 223 ; Building Societies' Fund, 44 C. D. 140 ; Standard Portland Cement
Co., W. N. (1890) 91. As to costs of second petition incurred after notice of first,
General Financial Bank, 20 CDiv. 276; Sheringham Development Co., W. N. (1893)
5 ; Scott and Jackson, W. N. (1893) 184.



Form 25.

Petition by
company
unable to pay
its debts.



The humble peton of The Coy, Lmtd, showeth as follows : —

1. Your petr, the above-named coy (hnftr called the coy), was, &c.
^iiicorjjoratioji and office, capital and objects, commencement of btisiness~\.

5. In the course of its business the coy has accepted bills of exchange
to the extent of 5,300^. and upwards. Two of these bills, for 700^. and

500^. resply, became due on the day of , but the coy was

unable to meet them. They still remain unpaid.

6. The remainder of the sd bills will arrive at maturity in the course

of the month of , 1893, and the coy has no funds with which to

meet them.

7. The assets of the coy are valuable. They consist in part of a

colliory which was purchased in the year at a cost of /., of

machinery and plant, of book debts amounting to upwards of /.,

and of uncalled capital to the extent of 1. There are divers in-
cumbrances affecting the coy's property, and the coy cannot obtain
any further advance upon the security thof.

8. The coy's account at its bankers has been overdrawn to the extent

of L, or thereabouts, and the bankers refuse to allow any further

overdraw.



WINDING-UP PETITIONS. 53

9. Tlio coy's colliery is in full working order, and upwards of



men are employed in or about the same. It is worked at a consider-
able i^rofit.

10. The assets of the coy if realized would be far more than snfli-
eient to pay and satisfy all the debts and liabilities of the coy.

1 1 . The coy is unable to pay its debts, and in the circumstances
afsd it is just and equitable that the coy should be wound uj).

Your petr the coy humbly prays :

[As in Form 20.]

Note. — It is not intended to serve this peton on any person.

It is not in general expedient for the company to present a petition. If a peti-
tion is desired, the usual course is to get a friendly creditor to petition. See supra,
p. 39.



On the day of your petr served on the coy, by leaving the Form 26.

same at the registered office thof, a demand under his hand requir- statement of

ing the coy to pay the sd sum of 1., and the coy has neglected to service of

pay such sum or to seciu'e or compound for the same to the reasonable je^an^d"^
satisfaction of your petr.

Where a petitioning creditor has served a statutory demand, pursuant to sect. 80
of the Act, a paragraph should be inserted in the petition as above. Eut it must
be borne in mind that omission to pay is not "neglect" within the meaning of the
section, if the debt is bona fide disputed by the company : London and Paris Banking
Co., 19 Eq. 444. The petition should not be presented until after the expiration of
twenty-one days from the service of the demand: Catholic Co., 33 L. J., Ch. 325 ;
2 D. J. & S. 116. But it need not be presented immediately afterwards : Imperial
Hydro. Co., 49 L. T. 147.



The form of demand may be as follows : —

To the Coy (Lmtd.)

Take notice that I , of , do hereby require you to pay me

the sum of /., owing by you to me [for, &c.] demandTor

As witness my hand this day of . payment of

But a less formal demand will suffice.



Form 27.



debt.



1. &c. [State 2}etitioner^ s case, e.g., inahility to 2) ay debts.'] Form 28.

12. The assets of the coy are of considerable value, and if prudently p . . — ~ '

realized will be sufficient not only to pay and satisfy the coy's debts fully paid-up

and liabilities, but to pay a substantial dividend to the members. shareholder.

A fully paid-up shareholder must allege and show that he has a tangible interest
in the assets: Rica Gold Co., U G.D. iZ; Vron Colliery Co., 20C.D.442; Diamond Fuel
Co., 13 C. D. 400. If he relies on a surplus to be obtained by proceedings against
the promoters, the facts should be fully stated in the petition. Paragon Co., Court
of Appeal, 19 Nov. 1884.



54 WINDING-UP BY THE COURT. [ChAP. III.

It is expedient also (thoug-h not necessary) to show that the petitioner is entitled,
under s. 40 of the Act of 1867, to jjetition ; City and County Bank, 10 Ch. 470. And
see supra, p. 41.



Form 29. 1 to 4. — ^Incorporation, office, capital, objects.
Petition ^' ^^^ agreement of the 21st of Dec, 1886, referred to in tlie sd

where sub- memorandum of association, provided for tlie sale by the sd

^ ■ (hnftr referred to as the vendor) to the coy of a concession or lease

granted to him by , and conferring the exclusive right to all

minerals under certain lands situated at , and all the other effects

of the vendor tipon the demised premises or used in connection there-
^vith, and under the sd agreement the conson for the sale was to be

5,000/. in cash, and in addition paid-up shares of the coy. This

agreement was adoj)ted by the directors of the coy on behalf of the
coy.

6. Shortly after its incorporation the directors of the coy issued a
prospectus inviting aj)plicons for 40,000 shares of 1/. each in the
capital of the coy. Such prospectus stated, amongst other things, that
the coy had been organized to take over and work the sd concession,
and represented that concession, and the property and rights com-
prised therein, to be of great value. In particular, the prospectus
stated :— (o) That, &c. (i) That, &'c.

7. The sd prospectus is alleged to have been prepared by the vendor,
and to have been issued by the directors on the faith of representations
made by him to the effect that the statements in the prospectus were
true, and it is also alleged that the directors were induced to adopt, on
the coy's behalf, the sd agreement of the 21st of Dec, 188G, by those
representations.

8. Upwards of 30,000 shares were taken upon the footing of the sd
prospectus, and were allotted to the applicants therefor, and consider-
able sums of money have been pd up by such applicants to the coy.

9. In or about the month of March, 1887, the coy pd to the vendor the
Bum of 5,000/., and issued to him or his nominees 35,000 fully pd-up
1/. shares pursuant to the sd agreement of the 21st of Dec, 1886.

10. Afterwards — namely, in the month of Jul}^, 1887 — the coy

despatched to , one D., an experienced mining engineer, with

directions to work the ppty and mines thereon.



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 14 of 134)