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1883, Ord. LII. r. 14.)

But in cases before Vaughan "WiUiams, J., every order is to be drawn up unless Drawin"-
the judge or registrar making the order otherwise directs. (See R. 10 of Ap. 1892.) up order.

An amendment has been allowed even of a " sketchy" petition, which contained
blanks as to date of incorporation, amount of capital, number of shares, nominal
value of each share, sum paid up, and objects of company. Standard Contract, <^-c.
Corporation, 8 T. L. R. 485.

R. S. C. 1883, 0. XXVIII. r. 11. — Clerical mistakes in judgments or orders, or Slip order,
errors arising therein from any accidental slip or omission, may at any time be
corrected by the Court or a judge on motion or summons without an appeal. (See
An. Pr. 1897, p. 608.)



Upon motion, &c. Order that the i)etr he at liberty to amend the Form 53.
sd peton as he may he advised : And order that the sd petr do have Order "-ivino-
four days from the date of this order within which to file his a£Pt lil^crty to
verifying the statements in the amended peton. Home v. Foreign Gas ^™®° *



Co., 4th Jnly, 1877. A. 1297. And see Anglo- Galician Syndicate,
Eeg. 25th Nov. 1893. 00323 of 1893.



Upon the peton of L., &c. Order that the peton stand over until Form 54.
the 17th May, 1878, and let the petr be at liberty to amend the sd Xnoth



74



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

peton generally as he may be advised. General Meat, S^c. Co., Malins,
Y.-C, 10th May, 1878. A. 940.



Security for Costs.

AMiere the petitioner is out of the jurisdiction, security for costs may be ordered.
Some Assurance Co., 12 Eq. 112; East Llangymg Co., W. N. (1875) 81. Except
where sect. 69 of the Act of 1862 applies, insolvency of the petitioner is not a ground
for requiring security for costs. Cowell v. Taylor, 31 C. D. 34 ; Elwdes v. Dawson,
16 Q. B. D. 548 ; Carta Tara Co., 19 C. D. 457, overruled. But where the petitioner
is a limited company, sect. 69 of 1862 applies.

Sect. 69 of 1862. — Where a limited company is plaintiff or pursuer in any action
or other proceeding, any judge having jurisdiction in the matter may, if it appears
by any credible testimony that there is reason to believe that if the defendant be
successful in his defence the assets of the company will be insufficient to pay his
costs, require sufficient security to be given for such costs, and may stay all pro-
ceedings until such security is given.

The fact that a company is in voluntary liquidation ib prima facie evidence of
insolvency. Northam2)ton v. Midland Co., 7 C. D. 500 ; Fare Spirit Co. v. Fowler, 25
Q. B. D. 235.

A petitioner out of the jurisdiction will not be ordered to give security when he
is the holder of an unsatisfied judgment against the company, or of an undisputed
debt of sufficient amount. Contract and Af/ciicy Co., 57 L. J. Ch. 5 ; W. N. (1887)
218.

And a shareholder, residing out of jurisdiction, opposing winding'-up, caimot be
ordered to give security. Fercy and Kelly, ^-c. Co., 2 C. D. 531.

As to security on petition to wind up a Hfe assurance company, see notes to
Form 22, p. 49.

Where the company itself appeals from a winding-up order, security will be
ordered. Fhotographic Co., 23 C. D. 370; Strong v. Carlyle Fress (2), W. N.
(1893) 51.



Form 55.

Summons for
security for
costs.



On the part of the above-named coy that the petr, "who is resident

at , in the kingdom of , out of the jurisdiction of the Ct, may

be ordered within days to give security in the sum of 1, to

answer costs in these matters, and that in the meantime all proceedings
in these matters may bo stayed.



Form 56.

Order for
security.



Upon tlio applicon by summons of the above-named coy, &c. It is
ordered that the potr, A. ]3., do procure some sxifficient person on his
behalf to give security according to the course of the Ct by bond in the

penalty of 1., conditioned to answer costs in case any costs shall

be awarded to bo pd by the petr, and that in the meantime until
Huch security is given all further proceedings in the matter be
stayed.



SECURITY FOR COSTS. 75

UlJon the ajDplicon by summons, &c. It is ordered, pursuant to Form 56a.
sect. 69 of the Cos Act, 1862, that the above-named coy, the Q,., &c. Ord. r for
Coy, Limtd, do procure some sufficient person on their behalf to give seouiity by

security by bond to , the respts to the sd [peton] in the penalty of company!"

1., conditioned to answer costs in case any shall be awarded to be

pd by the said coy to the applicants, and that until such security be
given all further proceedings in the sd matter be stayed. Queensport
Brick rmd Tile Co., 1892. Q. 592. North, J., 23rd March, 1892. And
see iSiroiiff v. Carhjle Press (2), W. N. (1893) 51.



Another.



Upon the applicon of the above-named eo}', the respts to the peton Form 56b.
of La Compagnie Gonerale, &c., on the 7th of June, 1893, presented to
this Ct, and upon hearing the solors, &c., and upon reading the sd
peton and an afit, &c. This Ct doth order that the petrs La Com-
pagnie, &c., do procure some sufficient person on their behalf to give
security according to the course of this Ct, by bond, to the applicants
in the penal sum of 50/., conditioned to answer costs in case any shall
be awarded to be pd by the sd petrs to the applicants. But the sd
petrs are to be at liberty, instead of giving such security, to lodge in
Ct, as directed in the schedule, the sum of 50/. And it is ordered that,
until such security is given or lodgment made, and notice thof given to
the applicants' solors, the petrs do not take any further proceedings in
this matter. And this order is to be without prejudice to the right of
the applicants to apply hereafter for further security as they may be
advised. Carenero Railway mid Navigation Co. 00169 of 1893. Eeg.
loth June, 1893.



Upon the applicon by summons dated, &c., of the above-named Form 56c.

coy, &c. \_see lasi/orni], and upon hearing, &c., and upon reading the r~^ — ~

order made in this matter dated 15th June, 1893, and the afft, &c. further
This Ct doth order that the petrs, &c. (in addition to the sum of 50/. security by
pd into Ct to the credit of this matter as security for costs of the above- company."
named coy, pursuant to the sd order of the 15th June, 1893), do within
fourteen days from the date hereof procure, &c., to give further
security, &c. But the sd petrs are to be at liberty, &c. [ws in last form,
omitting staging xcords'\. And this Ct doth further order that the
petrs do pay to the applicants their costs of and incidental to this
applicon in any event. And this order is to be without j^rejudice, &.c.
Carenero, Sfc. Co. Stirling, J., for Vaughan Williams, J., 30th Nov.
1893.



76



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



CHAPTEE VII.

COMPLIANCE ATTENDANCE, AND NOTICES AND LIST OF APPEARANCE.



Memorandum
(Form 17).



Attendance

before

reeristrar.



Form 57.

Notice of
intention to
apprar on
]M,-tition.
J'V)rm 2 of
Ap. 1S92.



Compliance Attendance.

In London cases in the High Court, the memorandum (Form 1 7, supra) must he
filled up and signed by the petitioner or his solicitor, and must be produced, together
\Yith the original petition, the newspapers, and affidavits or affidavit referred to in
it, to the Registrar, at the Companies Winding-up Office, Room 66, Bankruptcy
Buildings, Carey Street, W.C., not later than two clear days before the day of
hearing.

E. 18 of Ap. 1892. — After a petition has been presented, the petitioner shall, on a
day to be appointed by the registrar, not less than tvro days before the day appointed
for the hearing of the petition, attend before the registrar and satisfy him that the
petition has been duly advertised, that the prescribed affidavit verifying the state-
ments therein and the affidavit of service (if any) have been duly tiled, and that the
provisions of the rules as to petitions for winding-up companies have been duly
complied with by the petitioner. No order for the winding-up of a company shall
be made on the petition of any petitioner who has not, prior to the hearing of the
petition, attended before the registrar at the time appointed and satisfied him in
manner requii'ed by this rule.

This rule applies to all coui-ts having winding-up jurisdiction.

E. 177 of 1890 {supra, p. 73) should be borne in mind. And see /. Lang ^- Co.,
36 S. J. 271. Even where R. 18 of April, 1892, has apparently not been complied
with, the practice is to place the petition in the paper for hearing, the registrar's
clerk in attendance calling the attention of the judge to any defects.

Notices of Appearance.

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

and
In the matter of the \_ins('rt name of company~\ Company.
Take notice that A. B. \_stulc fall name, or if a firm, the name of the

firm~\, a creditor for /. of {or contributory holding shares in)

the above coy intends to appear on the hearing of the peton advertised

to be heard on the day of , 189 — , and to support {or opi^ose)

such peton.

(Signed) [2'o he nujned hy the person or his solor.']
[^Naine of persoji or firm. ~\
To . [^Address.']

R. 20 of Ap. 1892.- Fverj* person who intends to appear on the hearing of a



NOTICES AND LIST OF APPEARANCE.



77



petition shall serve on, or send by post, notice in -writing of lii.s intention to the
petitioner at the address stated in the advertisement of the petition. The notice
shall be signed by such person, or his solicitor, and sliall be served, or if sent by
post shall be posted in such time as in ordinary course of post to reach the address
not later than six o'clock in the afternoon of the day previous to the day appointed
for the hearing of the petition. The notice may be in Form 2, with such variations
as circumstances may require. A person who has failed to comply with this rule
shall not, without the special leave of the.Court, be allowed to appear on the hearing
of the petition.

See the note at the foot of Form 36, and R. 19 of April, 1892, supra, Chap. IV.

But where a second petition had been prcp;ircd and presented in ignorance of the
first, both petitions being answered for the same day, the second petitioner was
allowed to support the first petition, and allowed his costs, although he had given
no notice within R. 20.

A notice on behalf of six members, acting as a creditors' committee, was treated
as given solely on behalf of the six persons : Mid-Kent Fruit Factory, W. N. (1892)
65. Costs will only be given to creditors, &c., giving notice of intention to
support an application for the order afterwards made. Woodrow, Hooper ^- Co.,
W. N. (1893) 38.



List of Appearances.

\_Title.']



Form 58.



List of parties
attending the
The following are the names of those who have given notice of their hearing of a

intention to attend the hearing of the peton herein on the day P^t^it^o^



of



189-



Name.



Address.



Name and Address of

Solicitor of party who

has given notice.



Creditors.

Amount of

Debt.



CONTRIBUTORIES.

Number of
Shares.



Opposing,



Support-



Form 4 of
Ap. 1892.



E. 21 of Ap. 1892. — The petitioner shall prepare a list of the names and addresses of
the persons who have given notice of their intention to appear on the hearing of the
petition, and of their respective solicitors, which shall be in Form 4 [see Form 58].
A fair copy of the list shall, on the day appointed for hearing the petition, be
handed by the petitioner into Court prior to the hearing of the petition.

The above form is the one actually used. The column containing the names and
addresses of the solicitors is an addition to the form given in the schedule to the
Rides of 1892, but it is required by R. 21.

Where no notice has been received, a "negative " certificate should be filed, i.e.,
stating the fact.



78



WINDING-UP BY THE COUKT. [ChAP. VIII.



CHAPTEE VIII.

HEARING OF PETITION, CALLING MEETINGS, STANDING OVER,
WITHDRAWAL, DISMISSAL, REVIVOR.



Course to be
piirsued.

Wishes of
creditors and
contribu-
tories.



SiibHtituting
potitiontT.



Pcrw)iiH
fii titled to
appear.

UnoppoHcd
petitiouH.



Hearing.

Sect. 86 of 1862. — Upon hearing the petition the Court may dismiss the same
■with or -nithout costs, may adjourn the hearing conditionally or unconditionally,
and may make an interim order, or any other order that it deems just.

Sect. 91 of 1862. — The Court may, as to all matters relating to the winding-up,
have regard to the wishes of the creditors or contributories, as proved to it by any
sufficient evidence, and may, if it thinks it expedient, direct meetings of the
creditors or contributories to be summoned, held, and conducted in such manner as
the Court directs, for the purpose of ascertaining their wishes, and may appoint a
person to act as chairman of any such meeting, and to report the result of such
meeting to the Court ; in the case of creditors, regard is to be had to the value of
the debts due to each creditor, and, in the case of contributories, to the number of
votes conferred on each contributory by the regulations of the company.

Sect. 149 of 1862. — The Court may, in determining whether a company is to be
wound up altogether by the Court or subject to the supervision of the Court, in the
appointment of liquidator or liquidators, and in all other matters relating to the
winding-up subject to supervision, have regard to the wishes of the creditors or
contributories as proved to it by any sufficient evidence, and may direct meetings
of the creditors or contributories to be summoned, held, and regiilated in such
maini(-r as the Court directs, for the pvirpose of ascertaining their wishes, and may
appoint a person to act as chairman of any such meeting, and to report the result
of such meeting to the Court : in the case of creditors, regard shall be had to the
value of'the debts due to each creditor, and in the case of contributories to the
number of votes conferred on each contributory by the regulations of the company.

R. 2 of Mar. 1893. — When a petitioner consents to withdi-aw his petition, or to
allow it to be dismissed or the hearing adjourned, the Court may, upon such terms
as it may think just, substitute as petitioner any creditor or contributory who, in
the opinion of the Court, would have a right to present a petition, and who is desi-
rous of prosecuting the petition.

As to the notices required to qualify persons to ajjpear at the hearing, see
mijird. Chap. VII.

Ah to (ho costs of the appearance of a voluntary liqiiidator, see Mont do Piiti of
j:,n/hnd, W. N. (1892) 16().

If no notice to appear and oppose hus been received, petitions arc taken as un-
oppoHcd on the iirst calling of the list, in accordance with the practice of North, J.,
in Inman (J- Co., W. N. (1891) 202.



HEARING. 79

Creditors and contributories who desire to appear by counsel at the hearing Appearing by
should give notice of intention to appear (.see Form 57), and, if they are represented same solicitor,
by the same solicitor as the petitioner or company is, separate briefs should not be
delivered on their behalf, but their names should be added to the brief for the
petitioner or company as the case may be. If separate briefs are delivered by the
same solicitor only one set of costs is given between the petitioner or company, and
the creditors or contributories whom he also represents, lir'ujhton, 4r. Co. W. N.
(1897) 12.

Where a company is solvent, the wishes of contributories, and where it is insolvent Calling
the wishes of creditors, are specially regarded by the Court. Besides matters ™eetmgs.
arising after a winding-up order, the question whether a winding-up order shall be
made, and whether the order shall be compulsory or for supervision, is "a matter
relating to the winding-up" within the meaning of sects. 91 and 149 of 18C2,
siqjra.

In considering the wishes of any contributories or creditors, the Court will have
regard to all the circumstances and to the reasons they assign for their wishes.

The following are a few of the cases in which the Court has acted tinder sects. 91
and 149, or one of them: — Western of Canada Co., 17 Eq. 1. Creditor's petition
ordered to stand over at the wish of the majority of creditors : Chapel House Colliery,
24 C. D. 259. Creditor's petition dismissed at wish of majority of creditors : West
Sartlepool Co., uhi supra. Supervision order made at wish of majority of creditors :
New York Exchange, 39 C. D. 415 ; Electrical Engineering Co., 64 L. T. 658 ; Langham
Skating liink, 5 C. Div. 669. Shareholder's petition dismissed at wish of majority
of shareholders. Middlesbrough Assembly Rooms, 14 C. D. 104 ; Dore Gallery,
W. N. (1891) 98 ; Bock Investment Trust, 35 S. J. 447. See German Date Coffee Co.,
20 C. Div. 169 ; Haven Gold Co., 20 C. Div. 151, and T. E. Brinsmead and Sons,
(1897) 1 Ch. 45, where order made against wish of majority of shareholders ;
affirmed, (1897) 1 Ch. 406.

It must be borne in mind that, since the transfer to Mr. Justice Vaughan
Williams, a tendency has been shown to make compulsory orders in cases where,
under the old pi'actice, such orders would not have been made. See Krasna-
polshy Co., (1892) 3 Ch. 174 ; Neio Oriental Bank Corporation, (1892) 3 Ch. 563 ;
J. H. Evans ^ Co., W. N. (1892) 126 ; General Phosphate Corporation, W. N. (1893)
142 ; Be Medical Battery Co., (1894) 1 Ch. 444. But since Ex parte Barnes, (1896)
A. C. 146, Vaughan Williams, J., has more than once stated that the value of a
compulsory winding- tip order has been greatly lessened.

For the forms and other information with reference to meetings of creditors and
contributories, see post. Chap. XXXVI.

Adjournments.

Although the Court sometimes directs or allows winding-up petitions to stand "^Tien ad-
over, e.g., when one of the parties has not had time to answer the affidavits of the journment
others, or where it is desired to cross-examine persons who have made affidavits, directed,
or (occasionally) where proceedings for resolving on a voluntary winding-up are
being taken, applications for adjournment, especially by consent, are now regarded
with great suspicion. For a petitioner to consent to adjournment is dangerous (see
Rule 2 of March, 1893, supra), and inasmuch as there is now a fixed time for filing
evidence in opposition or reply (see Rule 1 of March, 1893), adjournments to answer
affidavits are not now allowed as a matter of course.

Sometimes a petition is ordered to stand over for some months, in order to give
the company an opportunity of raising further funds, or making a further attempt
to prosecute its objects. See Form 60.



80



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



Substitutinc
petitioner.



The Court, however, should not, except in very special circumstances, order a
petition to stand over for a lengthened period. It should either make an order, or
dismiss the petition ; for if, after adjovunment, a winding-up order is made, the
order would date back to the presentation of the petition, and avoid, therefore, or
imperil, anything that was done by the company in the meantime. Per Cau-ns, L. J.,
Metfopolitan WareJioiise Co., 17 L. T. 111.

' ' It was lu-ged that a postponement would do no harm ; but it appears to me
that it would do very great harm, for it would paralyse the company." Per
Cotton, L. J., Chapel Kouse Coll. Co., 24 C. Div. 267.

Cases occasionally occur in which it is expedient to order a petition to stand
over, e.g., where the petitioner is a judgment creditor, but the company desu-es to
impeach the judgment. Boues v. Hope Co., 11 H. L. C. 389; and see Forms 59
and 61, infra.

Kule 2 of March, 1893, supra, has not worked very satisfactorily. Efforts to
evade it have frequently, and sometimes successfully, been made. But the Court
takes all reasonable measures to enforce the rule, and when the parties consent that
the petition shall be vdthdrawn or dismissed, it is generally ordered to stand over
for a week, in order to give any other creditor or contributory an opportunity of
applying to be substituted as petitioner. For orders on petitions where other
persons have been substituted, see International Commercial Co., 9th March, 1896 ;
Eichmond Collotype Printing Co., 21st July, 1896. And see Inricta Works, W. N.
(1894) 39. Romer, J., on ordering another creditor to be substituted as petitioner,
directed him to amend the petition, and this was done by making him the petitioner,
and stating his debt in the place where the original petitioner's debt had been
stated. International Commercial Cu. (00168 of 1895), March, 1896.



Form 59.

Standing
over pending
cross-exami-
nation.



Upon the peton, &c.. Order that the hearing of the sd peton do
stand oyer until the completion of the cross-examination hnftr directed,
and order that the following persons he resply cross-examined before
one of the examiners of the Ct upon their respve affts hnftr mentd,
that is to say, A. B. upon his affdt, filed, &c. South Durham Brewery
Co., Kay, J., 26th June, 1886. B. 811. See Forms 51 and 119a.

For order appointing provisional liquidator, and petition to stand over, see
Form 85.

For order appointing provisional liquidator to call meetings to consider the peti-
tion and to stand over, see Form 86.

For order to stand over to ascertain wishes of shareholders, see General Phosphate
Corporation, 0096 of 1893, Vaughan Williams, J., 18th May, 1893.

The Court has a discretion as to allowing petition to stand over for cross-
examination. For order to attend for cross-examination at hearing, see Form 52 ;
and see london Fish Market Co., 27 S. J. 600.



Form 60. The poton of, &c., preferred unto this Ct, coming on this day to be
Order to stand ^^^ard before this Ct, and upon hearing counsel for, &c., opposing the
over. 8d peton, and the coy by their counsel undertaking not to consent to a

Avindiug-up order on any other peton, and not to wind up voluntarily,
and to give notice to the petr of any other peton for winding-up the coy
which may be served upon them, and in the event of any such other
poton being served upon them to consent to the peton being restored to
the paper, and that the applicon for a winding-up order by it may be



HEARING. 81

renewed in tlie same manner as if tlio peton had not been ordered to
stand over, Order that the peton do stand over [for six months]. St.
Thomas' Dock Co., M. R, 11th Feb. 1876, 2 0. D. 110; North-
Western of Monte Video, 8fc. Co., Hall,V.-C., 28th April, 1876, B. 1377.
See also Western of Canada Co., 17 Eq. 1; Joseph Bidl Sf Co., 36 S. J.
556; Colwijn Bay Pier Co., Vaughan Williams, J., 0085 of 1896.
13th May, 1896. See, however, Chapel House Coll. Co., 24 C. Div. 259.

An order as above is commonly called " a St. Thomas' Dock oixler." It has been
made in several cases where the petitioner was a debenture holder and a large
majority of the other debenture holders opposed a winding-up order, and it did not
appear that the petitioner would benefit by an immediate order.

As to imposing conditions on a petitioner who consents to this order, see Scott and
JaeUon, W. N. (1893) 184.

Where, upon a debentiire holder's petition, it was alleged by the company that
there were no assets except those comprised in the trust deed, Pearson, J., appointed
a provisional liquidator, and directed an inquiry on the subject. Olathe Silver
Minimj Co., 27 C. D. 278.



Upon peton of A. B., presented, t&c., and upon motion this day made Form 61.
unto this Ct by counsel for the resist coy that all jiroceedings under Order staying
the sd peton might be stayed, and that the sd peton might be dis- petition,
missed with costs, and upon hearing counsel, &c., and the respts by
their counsel undertaking within seven days from the date of this order
to make the paymt into Ct as in the lodgment schedule hereto, and
the petrs undertaking within seven days after such paymt into Ct to
commence an action in the Q. B. Div. of this Ct against the sd coy on
the bill, the subject of the sd peton, this Ct doth order that the respt
coy be at Hberty to make the paymt into Ct as in the lodgment sche-
dule hereto ; and it is ordered that the sd peton and motion do stand
over until the sd action is disposed of, with liberty to the petrs and the
respt coy to apply to restore the sd peton and motion if the sd sum of
600/. is not paid into Ct as afsd, and generally as they may be advised.
Lodgment schedule. W. Barter 8f Co., 28th May, 1892, Vaughan
AVilliams, J. (0018 of 1892).



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