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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thereof a notice stating that it will be the duty of the person who is at the time
secretary or chief officer of the company, and of such of the persons who are liable
to make out or concur in making out the company's statement of affairs as the
official receiver may requii-e, to attend on the official receiver forthwith on the
service thereof at the place mentioned therein.

The note at the foot of the order has been substituted for the original note in
Form 18 of 1890.

The substituted footnote is more in accordance with Rule 38 of 1890.

Having regard to sect. 4 of 1890, and the decision in North TFaks Gunpoivder Co.,
(1892) 2 Q. B. 220, the words in the order constituting the official receiver provisional
liquidator are surplusage. After the number of official receivers attached to the
High Court was increased, the practice of stating the receiver's christian name and
surname was discontinued. See note to Form 76b.

Whore an interim provisional liquidator had been appointed, the following words

were inserted in the winding-up order: "And it is ordered that Mr. , the

off recr attached to this Ct, bo continued prov liqr of the affairs of the sd coy,
but with the limitations and restrictions imposed by the sd order dated," &c. Com-
vicrcial Banking Co. ofSi/dnrg, 00M2 of 1893, Vaughan Williams, J., 7th June, 1893.
And tlii.s practice is still followed.



Form 72b. And it is oidorcd that no stops or proceedings are to be taken under
Iic»triclioii ^^"" ord(!r williout the sanction of tliis Court. Qucciisland National
Jiank, ()()i;38 andOOMl of 1893, Vaughan Williams, J., 8th July, 1893.

lu the case of foreign coinpauicB, such restrictions are not uncommon. Commercial



WINDING-UP ORDERS. 91

Bank of South Australia, 33 C. D. 174 ; Federal Bank of Australia, W. N. (1893) 46,
77 ; Standard Bank of Australia, 00125 of 1893 ; Nalional Bank of Australia, 00126
of 1893 ; Commercial Bank of Australia, 00174 of 1896, 5th Aug. 1896.



And the Ct doth hby limit and restrict the powers of the sd prov liqr Form 72c.
to the following acts, viz., to take possession of and collect and protect
the assets of the coy, but not to distribute or part with the same until
further order, and the off recr as such prov liqr is to be at liberty to
employ the London manager of the sd coy to do such things as the off
recr may consider necessary. Commercial Bank of Australia, 0094 of
1893, Vaughan Williams, J., 18th May, 1893.



Another.



And it is ordered that the sd C. do pass his account and be dis- Form 73.
charged, and his recognizance and bond, dated, &c., be vacated, and ' '.
that the sd C. is to be at liberty to apply for any balance due to him winding-up
on such account. National Wholemeal Co., 41 of 1891, Kekewich, J., °^^'^\' ^^ter
Mi May, 1891. S^Zlr'

But it is not now the practice to appoint an outside provisional liquidator. liquidator

And it is ordered that the sd N., who by the sd order of the of Form 74.

, was appointed prov liqr of the sd coy, do pass his account as ^^o^j^gj.

prov liqr, and do pay to the off recr and prov liqr the balance, if any,
found due from him as such prov liqr, within seven days after the
passing of such account, and upon such payment being made, or upon
its being certified that there is no balance due from him, it is ordered

that the recognizance of the sd , and the joint and several bond

of the sd , and the Society, Limtd, dated resply, «&c., be

vacated, and in the event of a balance being found due to the sd

on the said account, it is ordered that he be at liberty to apply for
payment of such balance.

Upon the peton of E. W. S., of , a creditor of the above-named Form 75.

coy, on the day of preferred unto this Ct, and upon the „^. ,.

peton of E. P., of , another creditor of the above-named coy, on order on two

the day of preferred unto this Ct, and upon hearing counsel Petitions.

for the respective petrs for the above-named coy, and for L. C. A., a
creditor, and upon reading the sd petons resply, an afft of the said

E. W. S., filed the day of , verifying the first-mentd peton,

and an afft of the sd E. P., verifying the secondly-mentd peton, the
London Gazette^ the Times newspaper, and the Standard newspaper,

all of the day of , each containing an advertisement of the

first-mentd peton, and the London Gazette, &c., each containing an
advertisement of the secondly-mentd peton, an afft of E. W. S., filed



92



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



the day of , an afft, &c., a joint afft of A. A. E. and J. C. W.,

filed, &c., and t-vro several affts of the sd L. C. A., filed resply, &c.
This Ct doth order that the B. &c. Coy, Limtd, be wound up by
this Ct under the provisions of the Cos Acts, [1862 to 1890]. And
order that the petrs resjily, and the said coy, and the said L. C. A., be
allowed their costs of or relating to the sd petons resply, out of the
assets of the said coy, such costs to be taxed by the taxing officer.
British Guardian Life Assur. Co., Hall, V.-C, 2nd May, 1876. A. 951.



Form 76.

Order allow-
ing costs of
second
petition.



Upon the peton of H. and M. on the 31st Jan., 1879, preferred
\_wincUng-up peton^, and upon hearing counsel for the petrs, and for S.,
a creditor, and upon reading the sd peton, and it being alleged that
an order dated 10th Feb., 1879, has been made for the compulsory
winding-up of the sd coy, and upon reading the sd order : This Ct doth
not think fit to make any order on this peton, but doth order that the
costs of the sd petrs, and of the sd S. of this applicon, be costs in the
winding-up of the sd coy. Medium for Sales and Exchanges, Hall,
V.-C, 14th Feb., 1879. B. 427. And see Mynyddgorddhn Co., Bacon,
V.-C, 13th Feb., 1883. B. 269.



Costs of Conctjreent Petitions.

When one petition has been presented and is pending, the presentation of a
second -^eiiiion is, prima facie, unjustifiable. It may, however, be justified if the
petition alleges that the first is collusive, or not presented bond fide ; but the facts
alleged must be proved {Building Societies' Trust, 44 C. D. 140), and if they are
proved, the first petitions will probably be dismissed and the order made on the
second. But, until notice of the presentation of a prior petition, steps may be taken
with a view to petitioning, and the Coui-t may allow the costs up to the time when
notice is received of the prior petition — i. e., generally, the time when the second
petition is presented. General Financial Bank, 20 C. D. 276; SJierinaham Der. Co.,
W. N. (1893) 5 ; Scott and Jackson, W. N. (1893) 184. And see note to Form 24.



Copies for
offifinl



Copy for
joint Htock
registrar.



Notir:*! to
rejfiMtnir of
buil'Iing
BocibticH.



Copies and Service of Order.

E. 39 of 1890. — Three copies of eveiy order to wind up a company, and order for
tlic appointiuent of the official receiver as provisional liquidator of a company,
sealed with the seal of the Court, shall forthwith be sent by post or otherwise by the
registrar to the official receiver. [Two copies only are now sent.]

Sect 88 of 1862. — When an order has been made for winding up a company under
tluH Act, a copy of such order shall forthwith be forwarded by the company to the
Registrar of Joint Stock Companies, who shall make a minute thereof in his books
relating to the company.

Sect. 32 of Building Societies Act, 1874.— Notice of the commencement and
t(rmination of every dissolution or winding-up [of a registered building society]
ahull bo Hcnt to the registrar, and registered by him. The Building Societies Act,
1891, contains nothing to the contrary.

Tho notice must be in duplicate and according to Treasury Reg. 1895 and
Fonri AB.



WINDING-UP ORDERS. 93

R. 40 of 1890. — The oflBcial receiver shall caiise a copy of the order to wind up Service on
the company scaled Avith the seal of the Court to be served upon the secretary or company,
other chief officer of the company at the registei'ed office of the company, or upon
such other person or persons, or in such other manner as the Court may direct.

Orders for substituted service of winding-up orders will be in much the same
form as special orders for service of petitions, as to which see Chap. IV.

Supervision orders "shall bo served upon such persons (if any) and in such Supervision
manner as the Court shall direct." See R. G of 18G2. orders.



Return to be made by the off reer immediately upon his receiving Form 76a

notice of the making of orders or provisional orders for winding up ■ —

COS. [A schedule follows, with five columns, headed respectively, Boar™of"
'' Name of coy," "No. of matter," "Date of order \if a provisional Trade.
order, off recr should state so~\,''^ " Name of petr's solor," "Name of ' °' '
o£f recr to whom it is projiosed case should be assigned [««y special
reason for appointing an off recr out of the usual rotation should be
stated^J^ The form is addressed "To the Inspector-General in Cos
Liqdn," and is signed by one of the off recrs.]

The following order is then issued by the Board of Trade : —

{Title.) Form 76b.

By virtue of the powers conferred by the Cos ("Winding-up) Act, ~Z~:

1890, the Board of Trade appoints IMr. , one of the off recrs in pointing

bankruptcy attached to the Ct, to be off reer of the coy for all purposes '^fficial
under the sd Act.

Dated this day of , 1894.

By the Board, John Smith,

Inspector-General in Cos Liqn, duly authorised in that behalf
by the President of the Board of Trade.

Up to July, 1893, there was only one official receiver, Mr. C. J. Stewart, attached
to the High Court, but two more, Mr. G. Stapylton Barnes and Mr. Wheeler,
having been appointed, orders as above became necessary. Mr. Stewart resigned
on March 31, 1896, and no other official receiver has been appointed.

Except under special circumstances, the cases are allotted in strict rotation to the
two official receivers.

Notices, Gazetliny, ^'c.

Supervision orders must still, unless the advertisement is dispensed with, within Supcrvi'^ion
twelve days after the date thereof, be advertised by the petitioner once in the London orders.
Gazette and in such other newspapers as may be directed. See Rs. 6 and 53 of
1862.

As to notices for gazetting, in case of a compidsory winding-up order, see the
following rule.

B. 41 of 1890. — When an order to wind up a company is made, the official Notice to
receiver shall forthwith give notice thereof to the Board of Trade, Avho shall forth- Board of
with cause such notice to be gazetted. Trade.



94



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



Form 77. The appropriate form of notice for the Gazette is prescribed by tbe Board of Trade

order of 13tli February, 1891. See Form 15.

As actually used it is intituled in the Act of 1890, and contains six vertical columns,
headed respectively : — (1) Name of company ; (2) Address of registered offices ;
(3) Court ; (4) Number of matter ; (5) Date of order ; (6) Date of presentation of
petition.

It is signed and dated by the official receiver, and addressed — To the Inspector-
General in Companies' Liquidation, Board of Trade, 4, Whitehall Yard.



Gazette
notice of
■winding-up
order.

Form 86 of
1890.



Form 78.

Notice of
order to wind
up for local
paper.
Form 20 of
1890 (as now
altered) .



Form 79.

Notice by

official

receiver of

winding-up

order

(general).



The Companies Acts, 1862 to 1890.

In the matter of the \insert full title of coy~\ Company, Limited.

Notice is hereby given that by an order made by [insert name of Ct
which made the order, e.g., "the High Court of Justice"] in the above
matter, dated the 3rd day of Sept. 1895, on the peton of the above-
named coy [or A. B., of No. 3, Street, in the City of London,

merchant, and C. D., of , in the County of , respectively

shareholders], It was ordered that, &:c. [as iji order, e.g., "the sd coy
be wound up by this Ct under the provisions of the Cos Acts, 1862 to
1890 "] : Notice is also hereby given that the Board of Trade has, by
virtue of the powers conferred by the Cos (Winding-up) Act, 1890,
appointed Mr. George Stapylton Barnes to be the off recr of the coy for
all purposes under the sd Act, and that the first meeting of creditors
will be held at [33, Carey Street, Lincoln's Inn, "W.C], on the — th
day of Oct. 189 — , at 11 o'clock, and the first meeting of contributories
will be held at [the same place] on the same day, at 1 2 o'clock.

Dated this — th day of 189—.

G. S. B., off recr and prov liqr.

The official receiver shall forthwith send notice thereof [i.e., of a compulsory
•winding-up order) to such local paper as the Board of Trade may from time to time
du-ect, or, in default of such direction, as he may select. (R. 41, cl. 2, of 1890.)

A winding-up order is not a judgment in rem, and if improperly made is not
binding on strangers. Boidlng ^- WeJbi/s Contract, (1895) 1 Ch. 663.

\_Please address all commtmications respecting this matter
to the OJicial Receiver in Companies' Liquidation, and
quote the name and number of the matter.[\
{Full Title.)
Board of Trade.

Department of the Official Eeceiver in Companies' Liquidation,
33, Carey Street, Lincoln's Inn,

London, W.C. 189—.

I hereby give you notice that a winding-up order was, on the day

of , 189 — , made by the High Ct of Justice in the matter of the

above-named coy, by which order I am constituted prov liqr of the sd
coy.

I am, your obedient servant,

, off recr and jfrov liqr.

To .



WINDING-UP ORDERS. 95

The official receiver uses a fonn as above, and ho sends special forms of notices to
the company's bankers and to collectors of rates and taxes. Each of these notices,
in the iirst place, states that a winding-up order was made on a date named, and
the notice to the collector also states where the company was carrying on business.

The notice to the banker then concludes as follows : —

"I will thank you, in acknowledging the receipt of this notice, to state the
amount of the balance standing in your books to the credit of the company, and, if
the same is available, to forward a cheque for such amount. If the pass book be
with you, please cause it to be written up and forwarded to me."

The notice to the collector concludes as follows : —

" Any claim you may have against the company for in respect of the pre-
mises situate at aforesaid, should be proved in the ordinary way, and should

there be sufficient funds for the purpose you will be entitled to payment in priority
to the extent mentioned in sect. 1 of the Preferential Payments in Bankruptcy Act,
1888. Should any proceedings have been commenced by you for the recovery of
the said claim, such proceedings must be discontinued forthwith, pursuant to sect. 87
of the Companies Act, 1862."



{Title.) Form 79a.

Upon motion on tlie 23rd April, 1896, made unto tliis Ct by B. of, '^^^.
&c., and J. of, &c., being resply the directors and also contributories of discharging
the above-named coy, and upon bearing counsel for the ajiplicants and o^^gp^""""^
G. S. B., tbe off recr and prov liqr of tlie above-named coy in person,
and upon reading tbe order to wind up the above-named coy, dated
1st April, 1896, the affidavit of, &c., and the exhibit X. therein referred
to (being the consent of all the shareholders of the above-named coy
to the stay of all proceedings imder the sd order of 1st April, 1896),
order that upon payment by the above-named coy to the sd G. S. B.,
as such off recr and prov liqr as afsd, of the sum of 10/. 10s. for
his fees and expenses as such prov licp, all further proceedings imder
the sd order, dated 1st April, 1890, be stayed, and that the sd order
be discharged. Gresham Investment Co. (0058 of 1890), Vaughan
WiUiams, J., 12th May, 1896.

See order to discharge in Towcester Co., Jessel, M. R., 30 May, 1878, B. 1185,
Order recited that petitioner paid, that order not advertised, that other creditors
who appeared consented. Query ultra vires. See also Aston Co., 45 L. T. 676, and
R. S. C. 1883, Ord. XXVII. r. 15. Is not the proper course merely to stay proceed-
ings under sect. 89 of 1862, and not discharge order?



96



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



CHAPTEE X.



PKOVISIONAL LIQUIDATORS.



Power to
appoint in-
tei'im provi-
sional liqui-
dator.



Official re-
ceiver becomes
provisional
liquidator on
winding-up
order.



And may Lo



Sect. 85 of 1862 — The Court may also at any time after the presentation of such
petition [?.«., "for winding-up a company under this Act"], and before the first
appointment of liquidators, appoint provisionally an official liquidator of the estate
and effects of the company.

Sect. 92 of 1862. — For the purpose of conducting the proceedings in winding up
a company, and assisting the Court therein, there may be appointed a person or
persons to be called an official liquidator or official liquidators ; and the Court having
jurisdiction may appoint such person or persons, either provisionally or otherwise,
as it thinks fit, to the office of official liquidator or official liquidators ; in all cases if
more persons than one are appointed to the office of official liquidator, the Court
shall declare whether any act hereby required or authorized to be done by the official
liquidator is to be done by all or any one or more of such persons.

As to omitting the use of the word " official," see sect. 4 (3) of 1890, infra.

This power to appoint an interim provisional liquidator still subsists, and may
be exercised at any time before a compulsory winding-up order is made, notwith-
standing the enactments following : —

Sect. 4 of 1890. — (1) On an order being made by the Court for winding up a
company the officer hereinafter mentioned shall, by virtue of his office, become the
provisional liquidator of the company, and shall continue to act as such until he or
another person becomes liquidator and is capable of acting as such.

(2) The said officer shall be the official receiver, if any, attached to the Court for
bankruptcy purposes, or if there is more than one such official receiver, then such
one of them as the Board of Trade may appoint, or, if there is no such official
receiver, then an officer appointed for the pxu-pose by the Board of Trade. Any
such officer shall for the purpose of his duties under this Act be styled the official
receiver.

(3) When a person other than the official receiver is appointed liquidator of a
company ho shall be styled liquidator and not official liquidator of the company,
and the provisions of the Companies Acts relating to the official liquidator shall,
in their application to him, bo construed as if the word "official" were omitted
therefrom. Such a person shall not be capable of acting as liquidator until he has
notified his appointment to the Registrar of Joint Stock Companies, and given
B<;curity in the manner prescribed to the satisfaction of the Board of Trade. He
Hhall give the official receiver such information, and such access to and facilities
for inspecting the books and documents of the company, and generally such aid,
as may be requisite for enabling that officer to perform his duties under this Act.

(4) If any vacancy occurs in the office of liquidator of a company, the official
receiver sliall, by virtue of his office, be the liquidator during the vacancy.

(o) The official receiver may be appointed by the Court provisional liquidator of



ITtO VISIONAL LIQUIDATORS. 9?"

the company at any time after tlie presentation of the petition and before a previously
"winding-up order has been made. appomted.

Sect. 85 of 1SG2 is not rciDcaled by the Act of 1890, and the express authority to Outside
appoint the official receiver to be provisional liquidator is not to be regarded as an interim
implied repeal of that section, or as precluding the Court from appointing any one P''^^i*^iona'i
but the official receiver as provisional liquidator before a wiudiug-up order.

" I do not think that it was the intention of the legislature [by sect. 4 (5), supra\
to enact that the official receiver should in all cases be provisional liquidator before
a winding-up order is made. It is to enable the Court, if it thinks fit, to appoint

the official receiver Under ordinary circumstances, the Court would

not think of appointing [another person] provisional liquidator, because if they
did he would only have to act for a very short time; but in case of need it might he
done:'' per Lindley, L. J., North Wales, tf-c. Co., (1892) 2 Q. B. 220.

And the power has been exercised in various cases, e.g., by Chitty, J., in Unionist
Club, W. N. (1891) 64 ; and see Form 86, infra. The invariable practice now is to
appoint one of the official receivers, with, if deemed necessary, liberty to him to
apply for the appointment of a special manager, and subject to such restrictions as
may be thought expedient. See Forms 81, 83, 85, 85a.

But when a winding-up order has been made the Court has no longer any power
in the matter, for thereupon the official receiver becomes, by virtue of his office,
provisional liquidator. Sect. 4 of the Act of 1890.

"The language is no longer optional. It is no longer optional to have a pro-
visional liquidator appointed after the winding-tq). There are officials of the Court,
called the official receivers, and they are . . . persons who under the Act are to be
provisional liquidators after the winding-up order, and they are to remain so until
other persons are appointed." North Wales Gunpoioder Co., (1892) 2 Q. B. 220, per
Lindley, L.J.

E. 32 of 1890, — -(1) After the presentation of a petition, upon the application of a Form of
creditor, or of a contributory, or of the company, and upon proof by affidavit of application
sufficient grounds for the appointment of the official receiver as provisional liqui-
dator, the Coui't may, if it thinks fit, and iipon such terms as may be just, make
such appointment.

(2) An order appointing the official receiver to be provisional liquidator prior to
the making of a winding-up order, shall bear the number of the petition in respect
of which it is made, and shall state the nature and short description of the property
of which the official receiver is ordered to take possession.

Formerly, and even since the Act of 1890, the application to appoint a provi-
sional liquidator was commonly made by motion {see Mercantile Bank of Australia,
(1892) 2 Ch. 204). But the practice now is to apply to the registrar by summons,
which will, if necessary, be adjourned to the judge.

It is usual to apply for the appointment of some person by name, and the appli-
cation should be supported by an affidavit as to the circumstances which render the
appointment desirable, and, where any person other than the official receiver is to
be appointed, as to the fitness of the proposed liquidator.

If the company makes, consents to, or is shown not to oppose, the application,
the appointment is almost a matter of course when it is asked that the official
receiver may be appointed, but if the company opposes, special cii-cumstances must
be shown, e.g., insolvency or danger to assets. Cilfoden Benefit Building Society, 3
Ch. 462 ; Emmersoii's case, 2 Eq. 231 ; 1 Ch. 433 ; 35 L. J. Ch. 652 ; 35 Beav. 518 ;
Marseilles Extension Co., W. N. (1867) G8 ; Hammersmith Town Hall Co., 6 C. D.
112. Very special circumstances must also be showTi where the application is for
the appointment of any person other than the official receiver. See supra.

Where the application is not made by or with the approval of the company,
P. H



98



WINDING-UP BY THE COURT.



rCHAP. X.



Eestricting
powers.

Evidence.



Special bank
account.



Special
manager.

Eemunera-
tion.



Security.



the summons should be served on the company. If the matter is urgent, liberty to
serve short notice of motion can be obtained. Occasionally a provisional liquidator
is appointed ex parte.

As to the application where the appointment of the official receiver is sought,
see notes to Form 96.

Sect. 96 of 1862. — The Court . . . where [an official] liquidator is provisionally
appointed, may limit and restrict his powers by the order appointing him.
This power is generally exercised.

If the provisional liquidator (not being the official receiver) is to carry on the
company's business, evidence should be forthcoming to show that it is desirable so
to do. The fact that there are contracts on hand, or that the company's difficulties
are only temporary, and that serious loss would be caused by stopping the business,



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