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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to use these proxies on his behalf, and in such manner as he may direct (R. 124 of
1890), and nominate some person to be the chairman of the meetings. Sched. I.,
r. 5.

Presiding at First Meetings.

The official receiver, or some person nominated by him as above mentioned, must Duties of
act as chairman of the fii-st meetings (Sched. I., r. 5) ; and admit or reject (pro- official
visionally in case of doubt) proofs for the purpose of voting (Sched I., r. 11) ; and I'^'^'^i''^^^-
use the proxies appointing the official receiver to act. Sched. I., r. 19. He must
see that there is a proper quorum of creditors or contributories, as the case may be.

If a poll is required, the official receiver must bear in mind the provisions of R. 107 Poll, adjoum-
of 1890, with reference to votes, creditors proving in respect of negotiable instru- ment, ^c.
ments or securities. He must also see that the voting is regiilar, having regard to
the proxies, to Sched. I., r. 24, to the Act of 1890, and to R. 108 of 1890, and that
the resolutions are duly passed in accordance with R. 25 of April, 1892. His
power to adjourn, subject as aforesaid, is with the consent of the meeting. R. 20
of Sched. I.

Ajid see further, as to Fikst Meetings, Chap. XVII.

Minutes and Peport.

The official receiver must cause minutes of the proceedings to be drawn up, entered
and signed. Sched. I., r. 23.

After the meeting has been held, the official receiver, or the chairman appointed Report,
by him, must report the resiilt of each meeting to the Court (R. 63 (1) of 1890) ;
but in London, notwithstanding R. 54 of 1890, it is not the practice to file a certi-
fied copy of the resolutions — they are, however, stated in the report. And see
Chap. XVII.

Applications folloiving First Meetings.

If the meetings of creditors and contributories pass the same resolutions or rcso- Appointment
lutions identical in effect, the official receiver must apply to the Court to make the of liquidator,
necessary appointments to give effect to such determinations. R. 63 (2a) of 1890. <^c.
In any other case he must apply to the Court to fix a day to consider the resolu-

1.2



148



'\^^XDING-r^ uy the court. [Chap. XV.



tions and determinations, decide the differences (if any), and make the necessary
appointments and orders (R. 63 (2a) ) ; and he must advertise the day fixed.
R. 63 (4) ; and see Forms 172—175.

B. 2 of April 2, 1895, annulled R. 63 (2) of 1890, and the decision as to what
amounts to a "difference" under that rule, xn. JoJiannisbcrg Land atid Gold Trust,
(1892) 1 Ch. 583, and substituted R. 63 (2a).

The official receiver will be heard by the Court in the consideration of the deter-
mination of the meetings. R. 63 (4) of 1890.

And see further, as to the steps to be taken in connection with the appointment
of liquidator and committee of inspection, Chap. XVIII.



Receipt of
proofs.



RUng.



Dividend.



Proof of Dehts.

Whether before or after the first meetings of creditors and contributories, and
prior to the liquidator being appointed, the official receiver is the proper person to
receive proofs of debts. R. 97 of 1890. If a liquidator has not previously been
appointed, he may, within twenty- eight days after the voting, require a secured
creditor who has estimated the value of his security under Sched. I., r. 9, to give
up his security on payment of the estimated value plus 20 per cent., as provided
by Sched. I., r. 10.

See Sched. I. to Act of 1890, as to proofs at first meetings, and, generally, Rr. 96
— 121 of 1S90. Rr. 97, 107 — 9, and 115 — 121, specially refer to the official receiver.
He has, before the appointment of a liquidator, all the powers of a liquidator
as to examination, admission and rejection of proofs, subject to the like appeal.
R. 115.

When no other liquidator is appointed, he must, before paying a dividend, file all
proofs tendered with a list mentioned in the rule. R. 116.

As to filing proofs when there is an appeal, see infra. Subject to an extension
of time by the Court, he must, as liquidator, not later than fourteen days from the
latest date specified in his notice of intention to declare a dividend as the time for
lodging proofs, in writing admit or reject every proof lodg-ed with him, or require
further e-sddence. R. 29 of April, 1892.

See further, as to proof of debts. Chap. XXXVII.



No other
liquidator.

No committee.



Advertise-
ments.



Vacancy.



Acting as Liquidator and Committee of Inspection where none appointed,
or in case of Vacancy.

If no liquidator is appointed by the Court, "the official receiver shall be the
liquidator of the comimny." Sect. 6 (3) of 1890.

If there be no committee of inspection, any act or thing, direction or permission
required to be done or given by the committee may, subject to the direction of the
Board of Trade, obtained on the application of the liquidator, be exercised by the
official receiver. Sect. 9 (9) of 1890, and R. 169. If there is no liquidator other
than the official receiver, it is understood that this official must apply to the Board
of Trade for special directions as to any particular thing to be done. As to acts, &c. ,
to be done by the committee of inspection, sec Chap. XXII.

Every appointment of a liquidator or committee of inspection must be immediately
advertised by the official receiver when he is liquidator (otherwise by the liquidator)
in such manner as the Court directs. R. 64 of 1890.

On the death, removal, or resignation of a liquidator, the same performance must
bo ropoatod, the meetings being again summoned by the official receiver on the
requisition of not less than ouc-tenth in value of the creditors or contributories.
R. 05.



OFFICIAL RECEIVEHS.



W.)



Duties on another Person being appointed Liquidator.

If a liquidator is appointed, the oflScial receiver transmits a copy of the order to Gazetting, &c.
the Board of Trade, which gazettes the order ; but the expense is paid by the
liquidator. R. 63 (5) of 1890. As to filing memorandum of gazetting, see stipra.

As to the ofiBcial receiver accounting to a liquidator appointed by the Court, the Accounts,
steps to be taken if the liqr is dissatisfied with the account, and the manner in
which the official receiver accounts to the Board of Trade, see R. 168 of 1890, supra.

The ofiBcial receiver must also give the liquidator possession of the company's Possession,
property, if the liquidator has rejDaid him all proper fees, costs, charges, and
advances, and interest on advances. The liquidator must also pay the ofificial
receiver all fees, &c., not paid before the former takes possession, whether incurred
before or after the liquidator takes possession ; and for all these things the ofificial
receiver has a lien ou the assets. R. 161 (1) and (2).

The official receiver must also hand to the liquidator all proofs of debts, first
making a list and taking a receipt. R. 109.

If 80 requested, the ofificial receiver must give the liquidator all necessary infor-
mation as to the aflPairs and estate of the company. R. 161 (3).

The ofificial receiver must also see that every special manager and liquidator gives Special
in proper time, and duly keeps up afterwards, his security, and must report any manager,
failvire to do either to the Court. R. 68 of 1890.



Effect of Non-appointment, or Vacancy in Office, of Outside Liquidator.

Besides being liquidator where no liquidator is appointed {supra), the ofificial
receiver becomes liquidator, by virtue of his office, during any vacancy in the office
of liquidator. Sect. 4 (4) of 1890.

Where the official receiver is liquidator, he is styled ' ' official receiver and
liquidator." R. 66 of 1890.

When acting as liquidator, the ofificial receiver has certain powers and privileges Special
not otherwise attaching to the ofifice. privileges

(rt) Whether provisional liquidator or otherwise, he may apply for the appoint-
ment of a special manager (sect. 5 of 18&0), who must account to the official
receiver. R. 172.
(J) The rules as to a liquidator's giving security do not apply to the ofificial

receiver when acting as such. R. 67 of 1890.
(c) The provisions of the rules as to liquidators accounting do not apply to the
ofificial receiver when liquidator, but he accounts as the Board of Trade from
time to time directs. R. 168 (3).
But in the Rules of 1890, "unless the context or subject-matter otherwise
requires, . . . 'liquidator' includes an official receiver when acting as liquidator."
R. 2 of 1890.

As to the powers and duties of liquidators generally, see infra, Chap. XXI.



of ofiBcial



General Meetings of Creditors and Contributories.

Rr. 47 — 57 relate to these meetings, and in some of them the official receiver is
mentioned. But it would seem that his duties or powers, as pointed out by the
rules in which he is mentioned, only exist (a) with reference to first meetings, the
Rules of 1890 being supplementary in this respect to the rules in Sched. I. of the
Act of 1890 ; and (b) in cases where no liquidator has been appointed, or there is a
vacancy in the office of liquidator. He seems, for instance, to have no power to



150 WINDING-UP BY THE COURT. [ChAP. XV.

summon a general meeting (beyond the first), unless he is also acting as liquidator,
or is directed by the Court to do so ; but compare Rr. 51, 52.
As to resolutions at these meetings, see R. 25 of April, 1892.

Information from Liquidator.

The official receiver, after a liquidator's appointment, is entitled to receive from

the latter information, access to books and documents, and aid generally to enable

the official receiver to perform his duties (sect. 4 (3) of 1890), especially those in

relation to private and public examinations, and taking proceedings for misfeasance.

Examinations under Sect. 115 0/1862.
The official receiver may, it would appear, apply for persons to be privately
examined under sect. 115 of 1862 (see Form 42 of 1890) ; and in such a case the
provisions mentioned below as to appointing a shorthand writer apply. See R. 16
of 1890. And see Practice Directions in Appendix.

Public Examinations.

The official receiver may also make a further report or reports embodying the
particulars mentioned in sect. 8 (2) with a view to a public examination of pro-
moters and others, and these reports must be considered and explained in the same
manner as the preliminary report. Rr. 70, 71. See Ex parte Barnes, (1896) A. C.
146.

If an order for public examination is made, the official receiver must apply to the
Court to fix the time (R. 73), give notice to the persons to be examined (R. 74), and
(by advertisement) to the creditors and contributories, and to the Board of Trade to
be gazetted. R. 75.

The official receiver must, in case before the examination a person ordered to be
publicly examined absconds, or there is reason to believe he will abscond, or in case
of failure to attend, without due cause at the examination, apply for a warrant of
arrest. R. 76. The official receiver must also, where necessary, nominate, and
apply for the appointment of, a shorthand writer. R. 16.

As to costs of the shorthand notes being an expense of realizing, see R. 31.

In important matters the official receiver must apply to the Board of Trade for
authority to employ a solicitor and counsel to conduct the examination, and see that
they are properly instructed, or otherwise himself take part in the examination.
Sect. 8 (4) of 1890. As to refusal to answer, see R. 17.

As to Board of Trade officers, and clerks of the official receiver taking part in
examinations, see R. 166, supra ; and see Chap. XLIV.

TaMny Proceedings for ^Misfeasance.
The official receiver may also, whether the winding-up is voluntary, under super-
vision, or compulsory, and whenever it commenced, take proceedings against
promoters, directors, &c., for misfeasance. Sect. 10 of 1890. His application may
be supported by a report (based on affidavit or other evidence) to the Court. R. 78
of 1890. As to the application, and serving notices and copy reports and affidavits,
sec R. 79 of 1890, and as to using notes of pubKc examinations, see R. 27 of Ap.
1892 ; and sec Chap. XLV.

Petitioning for Compulsory Winding-tip Order.
The official receiver may also petition for the compulsoiy winding-up of a com-
pany being wound up voluntarily or under suix'rvision. Sect. 14 of 1890. And see
Chap. III.



OFFICIATE RECEIVERS. 151

Application to Ptoiiah Persons J'or Contempt.

The official receiver may apply to the Court to punish persons for contempt in

improperly obtaining inspection of the statement of affairs (sect. 7 (6)), or of the
liquidator's statement to the Registrar of Joint Stock Companies. Sect. 15 (1) of
1890.

Removal, Sfc, of Liquidator.

On a liquidator resigning, or being relieved or removed, he must, if there is no
new liquidator, deliver his books, papers, and accounts to the official receiver.
R. 1-12 of 1890.

Fees and Expenses.

As to the priority of the official receiver's fees and expenses, and the order of
payment of costs generally, see R. 31 of 1890, and Chap. XLVIIT.



Costs and Taxation.

Where an application for costs is not made at the time of any particular pro-
ceeding, on any future application as to the costs incident thereto, the official re-
ceiver must be served and may appear. R. 26 of 1890.

As to no personal liability for costs of appeal from rejection of proof, see R. 121
of 1890.

Before taxation of the costs or charges of any person employed by the official
receiver, the official receiver must produce to the taxing officer the certificate, and
(in case of solicitor's costs) the copy of the resolution or authority respectively men-
tioned in R. 29 of 1890.

As to notice to official receiver and repayment to him on the review of a taxation
by the registrar of a Court other than the High Coiu-t, see R. 30 of 1890.

The official receiver must see that notice of the appointment to tax all bills and
charges is given to him, and that the bills or charges, if incurred prior to the
appointment of a liquidator, are duly lodged with him, and in the latter case he
must, on receiving notice of taxation, lodge the bills with the taxing officer.
Rr. 22—24 of 1890.

The official receiver is entitled to a copy of the bill to be taxed on payment of a
fee, and he must point out taxable items to the liquidator, and may attend or be
represented at the taxation. And see Chap. XLVIII.

Appeals from Official Receiver.

An appeal lies from the official receiver to the Court —

(«) With regard to the costs and expenses of persons making and verifying the

statement of affaii-s. Sect. 7 (4) of 1890.
(5) From his admission or rejection of a proof for voting purposes at the first

meeting of creditors. Sched. I. r. 11 to Act of 1890.
[c] From any act or decision of his when acting as liquidator (sect. 24 of 1890),
and in particular any act or decision of his in relation to the examination,
admission, and rejection of proofs before the appointment of a liquidator,
is subject to the like appeal. R. 115 of 1890.
The time for appealing is the same when the appeal is from his decision as
liquidator in respect of a proof. R. Ill .



152 WINDING-UP BY THE COURT. [ChAP. XV.

In High Court :

In "retained" cases must be brouglit by notice of motion, pursuant to R. S. C.

as to motions. R. 4 of 1890.
In cases before Vaughan Williams, J., are to the Court by motion (Rr. 3 and 5

of Ap. 1892), ^'hen the official receiver is acting as such; but when he is

acting as liquidator the appeal is by summons. R. 3 (2) of 1892; National

WJiole Meal Co., (1892) 2 Ch. 457.

Li Courts other than Sigh Court :
By application in open Court. R. 5 of 1890. And see further, Chap. XLIX.



Forms.

A number of the forms in use in a liquidation are applicable whether the official
receiver or someone else is the liquidator of the company, though many of the
forms used by official receivers are only applicable when they are acting as such
and not as liquidators. Besides the forms set out in this work, other forms are
used by the official receivers. These are of a departmental character, but many of
them might be adopted with great advantage by outside liquidators.



loa



CHAPTER XVI.



STATEMENT OF AFFAIRS AND PRELIMINARY REPORT.



Statement of Affairs.

Sect. 7 of 1890. — (1) Where the Court has made an order for -winding-up a com- Submission
pany, there shall be made out and submitted to the official receiver a statement as ''° official
to the affairs of the company in the prescribed form, verified by affidavit, and
showing the particulars of the assets, debts, and liabilities of the company, the
names, residences, and occupations of the creditors of the company, the securities
held by them respectively, the dates when the securities were respectively given,
and such further or other information as may be prescribed or as the official receiver
may require.

(2) The statement shall be submitted and verified by one or more of the persons jy -^hom
who are at the time of the winding-up order the directors, and by the person who is

at that time the secretary or other chief officer of the company, or by such of the
persons being or having been dii'ectors or officers of the company or having taken
part in the formation of the company at any time within one year before the order
for winding-up the company, as the official receiver, subject to the dii'ection of th9
Court, may require to submit, and verify the same.

(3) The statement shall be submitted within foiu'teen days from the date of the "^yhen made
order, or within such extended time as the official receiver or the Court may for

special reasons appoint.

(4) Any person making or concurring in making the statement and affidavit Expenses,
required by this section shall be allowed, and shall be paid by the official receiver,

out of the assets of the company, such costs and expenses inciirred in and about the
preparation and making of such statement and affidavit as the official receiver may
consider reasonable, subject to an appeal to the Court. [See R. 31 of 1890, and
Chap. XLVIII.]

(5) If any person, without reasonable excuse, makes default in complying with Default
the requirements of this section, he shall be liable to a fine not exceeding ten poimds

for every day during which the default continues. [See note to Form 148.]

(6) Any person stating himself in writing to be a creditor or contributory of the Inspection of
company shall be entitled by himself or by his agent at aU reasonable times, on statement,
payment of the prescribed fee, to inspect the statement submitted in pursuance of

this section, and to a copy thereof or extract therefrom. But any person untruth-
fully so stating himself to be a creditor or contributory shall be guilty of a contempt
of court and shall be punishable accordingly on the application of the liquidator or
of the official receiver.



154



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



Holding of
first meetinE's.



Instructiona
and filinar.



Attendance
on official
receiver.



Extending
time.



Subsequent
attendances.



Expenses.



E. 1 of April, 1895.— Rule 45 of the Companies (Winding-up) Rules, 1890 (pro-
viding that the first meetings of creditors and contributories shall not be held until
the company's statement of affairs has been submitted), is hereby annulled.

E. 58 of 1890. — (1) Every person who under sect. 7 of the Companies (Winding-
up) Act, 1890, has been required by the official receiver to submit and verify a
statement as to the affairs of the company, shall be furnished by the official receiver
with forms and instructions for the preparation of the statement. The official
receiver shall place upon the file of proceedings in the winding-up the verified
statement of affairs. The forms and instructions are supplied at the office of the
official receiver on personal application being made.

(2) The official receiver may from time to time hold personal interviews with
such person or persons, for the purpose of investigating the company's affairs ; and
it shall be the duty of every such person to attend on the official receiver at such
time and place as the official receiver may appoint, and give the official receiver all
information that he may require.

R. 59 of 1890. — Where any person requires any extension of time for submitting
the statement of affairs, he shall apply to the official receiver, who may, if he thinks
fit, give a written certificate extending the time, which certificate shall be filed
with the proceedings in the winding-up, and shall render an application to the
Court unnecessary.

It is the practice for the official receiver to extend the period from time to time if
an extension is reasonably required. See Form 147.

R. 60 of 1890. — After the statement of affairs of a company has been submitted
to the official receiver it shall be the duty of each person who has made it, if and
when required, to attend on the official receiver and answer all such questions as
may be put to him, and give all such further information as may be required of
him by the official receiver in relation to the statement of affairs.

R. 61 of 1890. — Any default in complying with the requirements of sect. 7 of the
Companies (Winding-up) Act, 1890, may be rejiorted by the official receiver to the
Court. [See notes to Form 148, infra.']

R. 62 of 1890. — A person who is required to make or concur in making any
statement of affairs of a company shall before incurring any costs or expenses in
and about the preparation and making of the statement apply to the official receiver
for his sanction, and submit a statement of the estimated costs and expenses which
it is intended to incur ; and no person shall be allowed out of the assets of the com-
pany any costs or expenses which have not before being incurred been sanctioned
by the official receiver.

As to the priority of the costs and expenses of persons making or concurring in
the statement of affairs, see Chap. XL VIII., p. 565.



Form 146.

Notice to
submit statc-
mt'nt of
affairH and
attend official
receiver.



{Title.)



To



Take notice, that a winding-up order in the matter of the above-
named coy was made on the day of , and I have, in pursuance

of the provisions of the Cos (Winding-up) Act and Kules, 1890, printed
at the foot hereof, to require you to submit to me, within fourteen



STATEMENT OF AFFAIKS AND PRELIMINARY REPORT. 155

days of the date of the sd windiug-up order, a statement of affairs,
in duplicate, of the sd coy.

The Cos (Winding-up) Act and Eulos, 1890.

\_Here are inserted sect. 7, sub-sects. 1 — 5, of the Act of 1S90 ; R. 58
©/"ISBO, omittiiig the tvords '■'■ under sect. 7 of the Cos {Windimj-up) Act,
1890;" It. 59, omittiiiy the xvords from '^ tvhich certificate" to the end;
R. 60; R. 61, omitting the tvords '''■of the Cos (Winding-up) Act, 1890;"
and R. 62.]

Forms and instructions for the preparation of the sd statement of
affairs can be obtained of me, ujion applicon.

Dated this day of , 189—.

, off recr and prov liqr,

33, Carey Street, Lincoln's Inn, London, W.C.



[Address and Date.)

Sir, Re , Ltd. Form 146a.

I am desired by the off recr to send herewith a notice requiring you Request to
to submit a statement of affairs of this coy. Forms for this purpose concur.

have ah'eady been supplied to , with whom I am to suggest that

you should at once confer with a view to having the statement com-
pleted and lodged within the statutory period. In the event of your
being unable to concur in the statement proposed to be submitted by

, forms for enabling you to file a separate statement can be had on

your applying at this department. — I am, Sir, your obedient servant.



(Title.) Porm 147.

I, , [assistant] off recr under the Cos (Winding-up) Act, 1890, Certificate

do hby certify that I have extended the time for submitting the extending

statement of affairs of the coy required of from the day ^^^^ "f ^ ^ ^'

of , 189—, to the day of , 189—. affairs.

Dated this day of , 189—.

, off recr.

See sub-sect. (3) of sect. 7 of the Act of 1890.



Upon the applicon of X., the off recr and liqr of the above-named Form 148.
coy, by summons dated, &c., and upon hearing the applicant in person, 5^i^7to



and no one appearing for the several persons named in the schedule submit or



156



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



concur m
statement of
affairs.



hereto, resply respts to the sd summons, although duly served with the



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 26 of 134)