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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64



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



then at the principal or last-known principal place of business of the company, if
any such can be found, upon any member, officer, or servant of the company there,
or in case no such member, officer, or servant can be found there, then by being left
at such registered office {supra, pp. 6, 7) or principal place of business, or by being
served on such member or members of the company as the Coui-t may direct ; and
every petition for the winding-up of a company, subject to the supervision of the
Court, shaU also be served upon the liquidator (if any) appointed for the purpose of
winding up the affairs of the company.
As to "registered office," see sect. 32, sub-sect. 3, of 1890, supra, p. 7.



Form 38.

Affidavit of
service of
petition on
members,
officers, or
servants.
Form 14 of
1890.



I,



of



(Tiile.)
In the matter of a peton dated
— , make oath and say : —



1. [/?i the case of service of peton on a member, officer, or servant at
the registered office, or if no registered office at the principal or last-hioivn
pirincipal place ofhusiness of the coy^

That I did on day, the day of , 189 — , serve \jiame

and description^, a member {or officer) (or servant) of the sd coy with
a copy of the above-mentioned peton, duly sealed with the seal of the

Ct, by dehvering the same personally to the sd at \office or place

ofhusiness as afsd\ before the hour of in the noon.

2. \In the case of no member, officer, or servant of the cog being found
at the registered offices or place of business.~\

That I did on day, the day of , 189 — , having failed

to find any member, officer, or servant of the above-named coy at [^here
state registered office or place of business^, leave there a copy of the
above-mentioned peton, duly sealed with the seal of the Ct, before the

hour of in the noon \^add icith ivliom such sealed copy teas left, or

where, e. g., affixed to door of offices, or placed in letter box or otherivise.^

3. \_In the case of directions by the Ct as to the member or members of
the coy to be served.~\

That I did on day, the day of , 189 — , serve [_name or

names and description^ with a copy of the above-mentioned peton,
duly sealed with the seal of the Ct, by delivering the same personally
to the said , at \^place'], before the hour of in the noon.

[4. A sealed copy of the sd peton is hereunto annexed.~\

Sworn at, «&c.

Tlio "sealed copy" of the petition is the one served, and cannot be annexed.
Substitute, therefore, for the words in italics in par. 4 the words, "The said
original petition is now produced and shown to me marked A."

Other examples : "by affixing the same to the outer door of the said office, or by
pushing the same iindcr the door of the said office, o?'by placing the same in the letter
box of B., the secretary and auditor of the said company at aforesaid."

If under R. LO of Ap. 1892 [supra, p. 44), the time for hearing the petition has been
alUTcd, tlio affidavit must show that the sealed coiiy had on it true copies of the
indorHcmentH fixing the time for hearing. (Sec W. Buckridge, Limited (00130 of
1«92), 30 S. J. 830 ; and F<jrni 4S. infra.)



ADVERTISEMENT AND .SERVICE OF I'lrmiOX. ^5

Form 39.



{Title.)



In the matter of a petuii, dated , for winding-up the above coy Affidavit of

under the supervision of the Ct. petition on

I, , of , make oath and say : — liquidator

That I did, on day, the day of , 189 — , servo [jiiame or^grf^^"^ ^

and descn'p(io>i,'] the liqr of the above-named coy with a copy of the Form 15 of
above-mentioned peton, duly sealed with the seal of the Ct, by

delivering the same personally to the said at [^place^, before the

hour of in the noon.

A sealed copy of the sd peton is hereunto annexed.

Sworn at, &c.

See note to Form 38 as to altering the words in italics.

If it becomes necessary to apply to the Court for an order as to service, the appli-
cation should be made by summons ex parte, supported by an affidavit as to the
facts. Under the old practice the application was usually by motion ex parte.
Fortune Co., 10 Eq. 390; Manchester Co., 9 Eq. 644; Vron State Co., W. N.
(1878), 70.

W^here a special order as to service has been made, the form of affidavit must bo
varied accordingly. (See Form 48.)



The following is an example of an ex parte summons for a special order for
service : —



{Title.) Form 40.



Let all parties concerned attend, &c., on the hearing of an applieon Ex parte
on the part of the petrs (The Corporation, Limtd), that service of summons for

11- 11 p Ti r 1 1 • special order

the peton presented herein on the oth day oi Marcli, 1892, by sending for service.
a copy of the sd peton, together with a copy of the order to be made
hereon, through the post, prepaid, in an envelope addressed to the

above-named , Limtd, at [address of recjd oJfice~\, and by sending

another copy of the sd peton and order in a similar manner addressed

to the sd , Limtd, to the care of Z., the secretary thof, at

No. — , Street, in the City of London, may be deemed good

service of the sd peton upon the sd , Limtd.



In the matter of the Companies Acts, 1862 to 1890, Form 41.

_ Affidavit in

In the matter of Geo. N. & Co., Limtd. support of

I, A. B. of, &c., clerk to Messrs. P. & Co. of the same place, sobs J^tituted'''

for the petr in this matter, make oath, (fcc. service.

1. A peton to wind up the above-named coy was presented to this Ct

on the 24th day of Oct., 1892. Such peton is now produced and shown

to me and marked, tS:c.

p. - w



66



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



2. On Wed. the, &c., I attended at tlio regd office of the sd coy,

No. , Street, in the City of London, for the purpose of serving

such peton, but found the sd office had been pulled down, and after
extensive inquiry I have been unable to find any office or place of
business of the sd coy.

3. On Friday the, &e., I attended at the office of the Eegr of Joint
Stock Cos at Somerset House, and searched the file of the above-named
coy, and found from the last annual return of members that G. N. of &c.,
"was on the of the reg-d holder of shares in the above-



is now or was until recently secretary to



named coy, and of ■

the sd coy.

The affidavit shoiild sliow that an attempt has heen made to serve the petition in
the ordinary "way, and state the facts which show that ordinary service is impossible
or difficult. The affidavit should also point out some person connected with the
company upon whom service may be made, with the probable result that the com-
pany's officers will obtain knowledge that a winding'-up petition has been presented.
But if this is not practicable, an order as in Form 46 may be asked for.



Form 42.

Order for
service (office
closed).



"Dj)on the applicon of &c., the petr named in the peton in this matter
preferred unto this Ct on the 19th of Oct., 1892, and upon hearing
counsel for the applicant, and upon reading the sd peton and the two
several affts of &c. It is ordered that service of the sd peton having
the order of the Ct thereon, that all parties should attend the Ct on the
sd peton on the 9th day of Nov., 1892, by leaving a copy (duly sealed
with the seal of the Ct) of the sd peton, together with a copy of

this order, at &:g., the regd office of the above-named syndicate,

and by delivering a sealed copy of the sd peton together with a copy

of this order to Baron at &c., in the City of London, or to his

secretary, at that address, be deemed good service of the sd peton on
the sd coy. The Jones Syndicate^ Limtd. 2 Nov., 1892, Eegr,



Form 43.

Special order.
Office closed.



The following are some examples of special orders as to service : —

Upon motion, &c., for H., who alleged that the sd H. on 23rd May,
1878, preferred his peton in these matters to this Ct for the winding-
up the above-named co}', and that the registered office of the sd coy
was closed, as by a joint afft of B. and P., filed, &c., a2:)pears, and
upon reading the sd afft, &c. Order that service of a copy of the sd
peton, having this Ct's order thereon that all parties concerned should
attend this Ct on the sd peton on 7th June, 1878, together with a copy
of this order on S. and B., two of the directors of the sd coy, be deemed
good service of the sd peton on the sd coy. Star RolUmj Mills Co.,
Mulins, V,-C., 30th May, 1878, 917 B,

Tlio above is the form in which the order is very commonly made, but according



ADVERTISEMENT AND SERVICE OF PETITION. C7

to the form given in Seton, p. 1624, it should run: — "That service of the said
petition having, &c., by delivering a copy thereof, together with a copy of this

order to at , be deemed, &c.," and this seems to be the form more recently

adopted.

Upon tlie applicon of A. B., the petr named in tlio poton presented Form 44.
unto this Ct in the above matter on the 5th of Marcli, 1892, by sum- 7 77
mons dated this day, and upon liearing the solors for the applicant and Special order
reading- the sd peton, an affdt of, &c., It is ordered that service of the f'^L*^.^^"^!'^^ ^v
sd peton,* by sending a copy thof, together with a copy of this order,
through the post prepaid, in an envelope addressed to the above-
named coy at No. — , , in the City of London, and by

sending another copj of the sd peton and order through the post
prepaid, in an envelope addressed to the sd coy, to the care of J. [_the

secretary^, at No. — , Street, in the City of London, be deemed

good service of the sd peton upon the sd coy. Louis S. Cohen^ Ld..
1892, L. 088, Kekewich, J., 7th March, 1892. B. 218.

* This Form is defective in not referring to the indorsement. See note to last
Form.

Upon motion, &c., and it appearing that the registered office of coy, Form 45.
which was situate at, &c., has been pulled down, Order that service 7 IT
of the sd j)eton on the sd coy by serving a copy of the same together Office

with a copy of this order on B., the secretary of the sd coy at , <iemohshed.

and on one of the firm of Messrs. M. & M. of the same place, the solors
of the sd coy, be deemed good service of the sd peton. Vron Slate Co.^
M.E., 27th Feb., 1878, B. 341 ; W. N. (1878), 70.
. See note to last Form.

Upon motion, &c., Order that service of the sd petn be effected by Form 46.
leaving a copy thof at the last registered office of coy, and if such office
be closed, then by advertising the same in the London Gazette and two
London daily morning newspapers [as provided by the General Order
of 11th Nov., 1862, made in pursuance of the Cos Act, 1862], be
deemed good service of the sd peton on the sd coy. Investors' Trust
Co., Lopes, J., for M. E., 16th Aug., 1877. A. 1735.

Upon motion, <S:c., Order that service of the peton on 3rd Dec, 1880, Form 47.
preferred unto this Ct by the sd E., having the order of the Ct thereon Another
that all parties should attend this Ct on the sd peton on 15th Dec,
1883, by delivering a copy thof together with a copy of this order to L.,

one of the directors of the coy, and also to Messrs. , of , the

solors of the sd coy, be deemed good service of the sd peton on the sd
coy, the respondents in the sd peton named. /. B. Rogers Electric Co.,
Bacon, V.-C, 11th Dec, 1883. A. 1758.

f2



Same.



68



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



Form 48.

Affidavit of
service pur-
suant to
special order.



{Title.)
I, T. E. E., of &c., managing clerk to Messrs. P. & L., of the same
place, solors for the X. Corporation, the petrs in these matters, make
oath, &c. :

1 . That pursuant to the order for substituted service made in these
matters, dated the 7th of March, 1892, I did, on Thursday, the 10th
day of March, 1892, at a quarter past three of the clock in the after-
noon of that day, serve the above-named " L. & Co., Limtd," with the
peton preferred in these matters by the sd X. Corporation on the 5th
of March, 1892, to the High Court of Justice, by enclosing a true copy
thof, duly sealed with the seal of the Ct, and having the Ct's order

thereon, as to attending the Ct on the day of , 189 — ,

and also a true copy of the sd order for substituted service in an
envelope duly addressed to Messrs. L. & Co., Limtd, at No. — in the
City of London (being their registered office), and putting the same
into the General Post Office situate at St. Martin's-le-Grand, in the
City of London, and by putting into the sd Post Office at the same time
another envelope containing a true copy of the sd peton, duly sealed
as afsd, and of the sd order duly addressed to Messrs. L. & Co., Limtd,
to the care of Z., Esq., at No. — , Street, in the City of London.

2. At the time of being posted as afsd, each of such envelopes was
duly fastened down, and had proper postage stamps affixed thereto as
prepaid letters. The original of the sd peton is now produced and
shown to me and marked A., and the duplicate of the sd order is now
produced and shown to me and marked B.

3. \_The name and address of Messrs. P. 8f L. [petrs' solors] icas
endorsed on each copy of the sd peton at the time of service thof as afsd,
but neither copy thof has been returned to them through the Dead Letter
Office or othericise.'\

Sworn, &c.



The above is the form approved in the registrar's office. Par. 3 may probably
be omitted.



69



CHAPTER V.

EVIDENCE ON PETITION.

{Title.) Form 49.



I, A. B., of, <S:c., make oatli and say, that such of tlie statements in Affidavit
the peton now produced and shown to me, and marked with the letter veritymg'

^ ^ ' petition.

A, as relate to my own acts and deeds are true, and such of the sd Form 17 of

statements as relate to the acts and deeds of any other person or persons ^^^^•

I believe to be true.

Sworn, (Src.

This form is the same as that under the Rules of 18G2.

R. 36 of 1890. — Ever}' petition for the winding-up of any company by the Court, Affidavit
or subject to the supervision of the Court, shall be verified by an affidavit referring ^° suj)port.
thereto. Such affidavit shall be made by the petitioner, or by one of the petitioners,
if more than one, or, in case the petition is presented by a company, by some
director, secretary, or other principal officer thereof, and shall be sworn after and
filed within four days after the petition is presented, and such affidavit shall be Prima facie
sufficient prima facie evidence of the statements in the petition. evidence.

The statutory affidavit [Form 49, supra'] must be duly sworn and filed within the
time limited by Rule 36, as above, and notice of the filing must be given to the
company. Neiv Weighing Machine Co., W. N. (1896) 48. Assuming that a proper
case has been alleged in the petition, this affidavit will be sufficient prima facie
evidence. Where it is uncertain whether there will or will not be opposition, it is
not usual to file further evidence, but as soon as evidence in opposition is filed, it is
generally necessary or expedient to fortify the petitioner's case by filing further
evidence, and in some cases it is desirable to cross-examine the deponents who have
made affidavits in opposition. The cross-examination is generally directed to take
place before the judge at the hearing of the petition. Occasionally, too, it is neces-
sary to examine before one of the examiners of the Court, or a special examiner, a
■witness whose evidence is desired, but who declines to make an affidavit. The
nature of the further evidence in support must, of course, depend on the case
alleged, and on the opposition affidavits ; but, where the case is inability to pay
debts, it is important to prove any further facts showing that the company is in
difficulties, and to show, if possible, that a majority, or a large number of creditors,
support the petition. It must be borne in mind that the prima facie evidence
afforded by the statutory affidavit is very readily displaced {Gold Hill Mines, 23
C. Div. 210), especially when fraud is alleged in the petition.

As to liquidator and manager under receiver being a " principal officer," see
Review Publishing Co., W. N. (1893) 5.

Where the petitioners were absent on the continent of Europe, the affidavit was



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

allowed tu be made by a clerk to the solicitors acting for tliora, who had full
knowledge of the proceedings to obtain judgment for the debt on which the petition
was founded, Carrara Marble Co., "W. N. (1896) 87.



Form 49a.

Another,
"where peti-
tioner is a
company.



I, A. B., of, &c., manager [or secretary] of the X. Bank, Ld, the
petrs in this matter, make oath and say, —

1. That I am duly authorized by the sd petrs to make this aift on
their hehalf.

2. That such of the statements in the petition now produced and
shown to me, and marked with the letter A, as relate to the acts and
deeds of the sd petrs, or to my own acts and deeds, are true, and such
of the statements in the sd petn as relate to the acts and deeds of any
other corporation, person or persons, I believe to be true.

The above form is recojmised in the registrar's office.



Form 49b. Upon the applicon, &c., Order that the sd C. E., the manager of the
petr, be deemed a sufficient a£ft for the verification of the above-
mentd peton. Chemists' Association. Eeg. 14 May, 1896.

In the above case petitioner in America on business.



Evidence in Opposition and Eeply.

Time for ^- 1 of March, 1893.— («.) Affidavits in opposition to a petition that a company

filing. may be wound up under the order or subject to the supervision of the Court shall

be filed within seven days of the date on which the affidavit verifying the petition
is filed, and notice of the filing of every affidavit in opposition to such a petition
shall be given to the petitioner or his solicitor, {b.) An affidavit in reply to an
affidavit filed in opposition to a petition shall be filed within three days of the date
on which notice of such affidavit is received by the petitioner or his solicitor.

Affidavits should be made, if possible, disproving the petitioner's case. It may
bo desirable to cross-examine the petitioner, and to cross-examine any other
persons who give evidence in support of the petition ; and it may also be desirable
to examine before an examiner any persons who can give evidence, but decline to
make affidavits.

Evidence may also be adduced that the majority of the creditors or contributories
arc against the petitioner, and that the company is about to wind up voluntarily.

Those who oppose should disclose all material facts. Me Evans, W. N. (1892) 126.

The Court can extend the time, but is reluctant to do so. Ui/iq'da, ^r. Limtd., 40
S. J. 621.



Iiifni-mafion
and belief.



Evidence generally.

Vivd voce evidence at the hearing is sometimes permitted. In such cases tho
Court usually fixes a day for the hearing. See Form 52.

1 1 ."-hould be borne in mind that upon a winding-up petition evidence of infor-
mation and belief is not [except as regards the statutory affidavit] admissible
(Gilbert v. Endean, 9 C. D. 259 ; New Callao, 22 C. Div. 484) ; for the application



EVIDENCE ON PETITION. 71

is not interlocutory within the meaning of Ord. XXXVIII. r. 3. It often happens
that part of the evidence in support of or opposition to a petition is rendered useless
by non- attention to this rule.

As to whether affidavit or oral evidence is to be used in winding-up petitions in
the County Court, seeR. 178 of 1890, and note thereon, Chap. LIII., infra.

Filing Evidence out of Time.
Practice Direction. — Wlien an affidavit is presented for filing out of time, such
affidavit is only to be received on the undertaking of the solicitor, to abide by the
order of the Court as to the costs of any adjournment occasioned thereby, and as to
the solicitor's right to charge any such costs against his client.

Upon, &c., for A., wlio alleged that the sd A., on 1st April, 1876, Form 50.
presented his peton in these matters to this Ct, but omitted to file his ^~7 TTTa.
afltt in support of such peton within the time limtd in that behalf by ing time to
the general order of this Ct, and upon reading an afft of E. L., filed ^"^ affidavit,
the 11th Oct. 1876, Order that the sd A. be at liberty to file his afft
in support of the sd peton notwithstanding the time limtd for that
purpose has expired. Civil, ^'•c. Supply Association, M. E., 11th April,
1876. A. 723.

The four days limited by Rule 36 [supra] for filing the affidavit verifying the petition
may, under Rule 176 of 1890, be extended by the Court, as it might under Rule 73
of 1862. Patent Screwed Boot and Shoe Co., 32 Beav. 142 ; JFestern Benefit Soc., 33
Beav. 368 ; Fortune Copper, 10 Eq. 390.

The application should be by summons, but no affidavit need be filed showing
why it is not practicable to comply with the rule.

The order was, under the old practice, commonly obtained on motion, ex parte,
before the hearing, and veiy commonly without any sworn evidence being required.
Under the old practice there was no necessity to draw up the order, but notice was
given to the respondents: see R. S. C. 1883, Ord. LII. r. 14 ; and under the new
practice, before Vaughan "Williams, J., notwithstanding R. 10 of 1892 {supra,
p. 30), the order is not drawn up, but merely indorsed on the summons.

The summons may be served on the day previous to the return thereof : R. S. C.
1883, Ord. LIV., r. 4e.

As already stated, the time limited for filing evidence by Ride 1 of March, 1893,
may be extended. Uniquia, ^-c. Limtd., 40 S. J. 621.

Upon motion for coy and upon hearing counsel for D., the petr, &c., Form 51.

and upon reading affts of D., W. and C. Order that the sd deponents T" — i

Order for
D., W. and C. do attend before one of the examiners of this Ct for cross-

the purpose of being cross-examined upon their sd affts. And order examination.

that any party be at liberty to read and give the depositions so to be

taken in evidence on the hearing of the petons of the sd D. and C,

saving all just exceptions. And let the petons stand over until the

depositions so to be taken shall have been filed. Ramsgate Tramways

Co., Kay, J., 28th March, 1884. B. 228. See Form 59.

Since the Supreme Court Rules of May, 1884, it is necessary to obtain an order.
See further, as to examination and cross-examination, infra. Chapter XII.
See Form 119a for order for cross-examination at hearing of petition.



72



WINDING-UP BY THK COURT. [ChAP. V.



Form 52.

Order for
witnesses to
attend in
Court.



Applicon that petrs attend to be cross-examined before examiner.
No order thereon, but order that the further cross-examination of the
sd H. on his afft, filed 8th Jan. 1883, in the above matter, and the
cross-examination and re- examination of F. and R. on their aflfts,
filed, &c., be taken in Ct on the hearing of the sd peton in lieu of
being taken before Mr. N., the special examiner appointed by the sd
order, and let the sd F., E., and H. attend accordingly on the hearing
of the sd peton to be cross-examined on their sd affts. And order
that the deposition of the sd H. taken on his afft, so far as such cross-
examination has already proceeded, be formally completed and filed
with the [masters of the Supreme Ct]. Costs of both parties reserved
to be dealt with on the hearing of the peton. Hoover Hill Co.^
Chitty, J., 9th March, 1883. A. 387.

Sometimes — e.g., where the Court has reason to think that the proceedings before
the examiner are being oppressively or otherwise improperly conducted — an order is
made as above.



73



CHAPTER VI.

AMENDMENT ; SECURITY FOR COSTS.



Amendment.

R. 177 (1) of 1890. — No proceeding under the Acts shall be invalidated by any Formal
formal defect or by any iiTcgularity, unless the Court before which an objection is defects
made to the proceeding is of opinion that substantial injustice has been caused by "^'^'itenal.
the defect or iiTegularity, and that the injustice cannot be remedied by any order of
that Court.

Under R. S. C. 1883, Ord. XXVII. r. 6, the Court may give liberty to amend
any pleading (which includes a x'ctition, Judicature Act, 1873, s. 100).

And where any trifling slip has been made, amendment is permitted as of course,
but liberty to amend is sometimes given, even where the petition is demuiTable.
See Rica Gold Co., 11 C. Div. 42 ; White Star Co., 48 L. T. 815. Under the general
practice of the High Court there is no need to draw up the order. (R. S. C.



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