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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and payments of the off recr. At subsequent audits the balance should
be brought forward and the account continued from the date to which
the previous account was made up. One copy should contain an
analysis of receipts and jiayments in the prescribed form and should
be verified by afft. The other copy for filing should be on foolscap
sheets, '^•' and need not include the analysis of the receipts and paj^ments.
The stamp duty prescribed by the scale of fees should be affixed to the
verified copy, and the stamps to be used are "cos (winding-up)
stamps." An o^ce copy of the front sheet, and of lists B., C, G. and
H. of the statement of affairs, showing thereon, in red ink, the amounts
realized, and explaining the cause of the non-realization of such assets
as may be unrealized, should be forwarded with the first accounts.

3. The original cash book need not be forwarded at audit unless
specially asked for.

4. The record (which should be forwarded with the accounts for
inspection, after which it will be returned to the liqr) must be made up
to date of audit, in accordance with R. 143, and must show, inter alia,
the authorities for —

(a) Employment of solor, if employed with the sanction of the com-

mittee, and the several special matters in respect of which
such employment is sanctioned.

(b) Liqr'g remuneration, if any.



* The fornjH in use for casli Looks and filing copies are kept in stock by Waterlow
and Sons, Limited, London Wall, E.G. ; AVaterlow Brothers and Layton, Limited,
24, Birchin Lane, E.G. ; Drew, Wood and Son, Basinpliall Street, E.G. ; John
Smith and Go., 52, Long Acre, W.G., and probably by other law stationers.

\_Avrirxi<l t» a Hunk form of aj/idavit of verifivaiiun. See Form 11 o/lSQO {Form
21G, infru.)]



ACCOUNTS OF LIQUIDATOR.



239



5. Allocaturs must he forwarded for all taxed charges, and tlie
amount of costs paid in respect of each special matter sliould be sepa-
rately stated as far as possible.

6. The periods covered by payments for rates or wages must bo
clearly stated in the account.

7. Where a special bank account has been authorized the pass book
must be forwarded, together with a certificate by the banker of the
balance at the date of the account.

8. Each payment and the voucher therefor must be numbered.

9. The auctioneer's sale account, if any, must be forwarded.

10. The trading account and special manager's account and vouchers,
if any, must be forwarded.

11. Detailed accounts of charges for incidentals must be furnished.

12. The terms of the afft (Form 77) render it imperative that moneys
received by a liqr's solor or other agent (and for which the licj^r is
responsible) should be included in the account.

13. A report on the enclosed form. No. Lr. 13, should accompany
each account submitted for audit.

14. If the ppty of the coy is fully realized and distributed, the liqr
should at once forward his applicon for release (Form 79) accomj)anied
by a copy of the notice and summary (Forms 71 and 78), and an afft
verifying the postage of such notice and summary to all the creditors
who have proved their debts and to all the contributories. (R. 148.)

The "analysis of receij)ts and payments" referred to in Note 2 is the sub-
division of the receipt and payment columns which is made in the cash book itself.
See Form 209, siqjra. In other words, one copy sent for audit must be an actual
copy of the cash book from the date of the last audit, and the other need only con-
tain the particulars indicated in the next form.



{Title.)
Cash Book.



Date.



Of wliom
received.



Amoimt.



Drawn from
Bank.



Date.



To ■whom
paid.



Nature of
Paym.ent.



Amount.



Form 214.

Copy cash
book for
filing-.



Paid into
Bank.



\_Copy Certificate of Committee of Inspection, as in Form 211.]
\Certificate of Audit hy Board of Trade, see Form 211.]

This copy, when certified, is placed on the file (in the High Coui-t, Room 66,
Bankruptcy Buildings, Carey Street).

The form used by the official receiver now usually omits columns 4 and 9 above.



245



WINDING-UP CY TIIH COURT. [ClIAP. XXIV.



Note. — T/iis form is prinieJ ivifh copyahlc iiiJc, and a 2^'>'ess cojjy can, if desired, he

taken.
Form 215. No. Lr. 13. Audit No. —

B^t ' ^ ^ ^ . , I'^eg. No.

(No. Lr. 13) Ee Coy, Limtcl.

of liquidator Report of Liqr on position of matter at tlie Audit, due .

to accompany
account.



Assets as per Statement.



Property, as per List "H," viz. :

(«) Cash at bankers

[b) , , in hand

[e] Stock-in-trade

[d) Machinery, &c ,

{e) Trade fixtures, &c

(/) Investments in shares, &c.

(g) Loans on mortgage

(A) Other property, viz. :



Book debts — good

do. doubtful and bad.

Bills of exchange

Surplus from securities

Unpaid calls, as per List "K".
Capital not called up



Totals .



Eealized.



Estimated
value out-
standing.



Remarks.



Date of "Winding-up Order . Date of First Meeting . Date of Liqui-
dator's Certificate . Balance now at credit of the Liquidation, £ .

Dividends.



When declared.



What declared
per£.



If not declared, state reason.



State when declaration ■wiU
probably be effected.



Legal Proceedings Authorized.



Date of Resolution

autlioi-isin ■ riiiploymcnt

of Solicitor.



Name of Solicitor.s.



Nature of work authorized to be done.



ACCOUNTS OF LIQUIDATOR. 241

If any actions or other proceedings are delaying the close of the
liquidation, state shortly the nature and probable duration thof.*'

If applicon for release not yet made, state reason, and when liqr
expects to be in a position to apply for same.

State shortly any other circumstances tending to delay the winding-
up of the coy, or affecting the realized value of the ppty or the costs of
its realization,

Liqr.

To Date . 189—.

The Inspector-General in Companies Liquidation,
4, Whitehall Yard, S. W.

* Where the above space is not sufficioit for the answer, it may be written on the back,
or on a separate sheet.



{Title.) Form 216.



I, G-. H., of , the liqr of the above-named coy, make oath and AffidaA-it



say



verifvino-



7 7 7 7 -r. • liquidator's

inat "'the account hereunto annexed marked B. is a true copy of the account.

'■'cash hook^^ kept by me as such liqr, 2}ursiiant to Utile 144 of the Cos ^^r^?'^ '^^

[Winding-uj)) Rules, 1890, and contains a fill and true account of my altered by

receipts and payments as such liqr from the day of 189 — to ^- '^- O^^^er

the • day of 189 — inclusive, ^'and that I have not, nor has i895). '

any other person by my order or for my use during such period,

received or pd any moneys on account of the sd coy ^'other than and

except the items mentd and specif ed in the sd account.

Sworn at, &c.

*NoTE. — If no receipts or payments, strike out the words in italics.

The title must commence with " In the High Court of Justice," or "County-
Court of , holden at ," or as the case may be.

The first date in blank is " The date of the appointment of liquidator, or the
date to which previous aiEdavit extends." Board of Trade Directions.

"The account is to be marked as an exhibit to the affidavit." //,'.

A 2s. companies (winding-up) stamp must be affixed in the upper part of the left
hand margin of the affidavit.

This affidavit is required by R. 136 (3) of 1890, and seems to have been sizbsti-
tuted for the statutory declaration mentioned in sect. 20 (2) of 1890, supra.

R. 136 (3) has been read as meaning " certified by the committee of inspection
and verified by the liquidator." In practice, the liquidator signs the account
below the certificate of the committee of inspection ; but no certificate by him on
the account or separately appears to be required.



242
Form 217.

Liquidator's
summary of
accounts
under r. 139.



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

lu the Matter of the Cos Acts, 1862 to 1890,
and

In the Matter of the Coy, Limtd.

SUMMAET OF LIQUIDATOR'S ACCOUNTS,

Prom 189—, to 189—.

Issued hy the Board of Trade under the provisions of sect. 20 of the Cos ( Winding-up)
Dr. Act, 1890. Cr.



To balance

,, receipts, viz. : —

(ff) Cash at bankers ,

{b) , , in hand

((?) Stock-in-trade

[d) Machinery, &c

((') Trade fixtures, &c

(/) Investments in shares,

&c

(f/) Loans on mortgage . .
(/;) Other property, viz. :



book debts — good

, , doubtful and bad

bills of exchange .... ....

surplus from securities . .
receipts per trading accounts
calls due at date of vending

up order

calls made by liquidator . . .



£ s. d.



Less —

Payments to deben-

tui'e- holders ....

Do. to execution

and other secured

creditors

Do. per trading
account ,



Receipts.



By balance

,, Board of Trade and Court
fees

,, law costs of petition, includ-
ing costs of any person
appearing in the petition
•whose costs are allowed . .

,, costs of solicitor to liquidator

,, other law costs

, , special manager's charges . .

,, allowance for preparing
statement of affairs . .

,, fees of ofiicial receiver as
provisional liquidator . ,

,, charges of provisional liqui
dator, other than official
receiver

, , remuneration of liquidator

,, auctioneer's and valuer's
charges

,, shorthand writer's charges.

, , other charges ,

,, costs of possession

,, do. of notices in " Gazette"
and local papers

,, incidental outlay



Total costs and charges .



creditors and con-
tributories : —

preferential cre-
ditors

unsecured cre-
ditors divi''. of

in the £

on £ ....

return to con-
tributories at

the rate of

per share ....



£ s. d.



Balance ,



Payments.



Creditors and contributorics can obtain any further information on applicon to
the li(ir.

day of 189 — , Liqr.

Address .



.11



ACCOUNTS OF LIQUIDATOR. 243

The above is the form of summary transmitted to the Board of Trade, and by
them approved, printed and circulated in pursuance of the following' rules : —

It is in much the same form (amplified) as the form (No. 71 of 1890) of statement
to accompany notice of application for release under R. 148 (see Form 697,
Chap. LI.), but is entirely distinct therefrom, and must be furnished in the case
of every audit.



[Date]. Audited [the liqr's petty disbursements being disallowed Form 218.
to the extent G^. (or as the case may he)\. Board of

By order of the Board of Trade, Trade's

-n TTT- T L certificate of

F. W., Inspector. ^udit.

Proceedings to enforce Audit, &c.
The Companies Acts and Rules do not contain anything like sect. 102 (5) of the Failure to
Bankruptcy Act, 1883, with reference to enforcing the furnishing of accounts (not coD^ply 'f'^^"-
being within sect. 15 of 1890) ; nor do they enable the Board of Trade to remove Trade require-
a liquidator for not fui'nisliing' vouchers or information, or producing books or ments,
accounts, as required by sect. 20 of 1890. But if the requirements of the Board of
Trade in respect of any of these matters are not complied with, the Coiu't in which
the winding-up is proceeding may, on the application of the Board, supported by
an affidavit of default, make an order on the liquidator to fulfil the requirements of
the Act or rules. The Board of Trade has had its own special forms drafted in
case any such proceedings should become necessary.

Interrogating and Examining Liqiiidator — Ordering local Investigation

of Books.

Sect. 25 of 1890. — (1.) The Board of Trade shall take cognizance of the conduct Board of
of liquidators of companies which are being woimd up by order of the Court, and Trade control
in the event of any such liquidator not faithfully performing his duties and duly , ^^
observing all the requirements imposed on him by statute, rules, or otherwise,
with respect to the performance of his duties, or in the event of any complaint
being made to the Board by any creditor or contributory in regard thereto, the
Board shall inquire into the matter, and take such action thereon as may be deemed
expedient.

(2.) The Board may at any time require any liquidator of a company which is
being wound up by order of the Court to answer any inquiry made by them in rela-
tion to any winding-up in which the liquidator is engaged, and may, if the Board
think fit, apply to the Com-t to examine on oath the liquidator or any other person
concerniug the winding-up.

(3.) The Board may also direct a local investigation to be made of the books and
vouchers of the liquidator of any company which is being wound up by order of
the Court.

K. 171 of 1890.— (1.) An application by the Board of Trade to the Court to Examination
examine on oath the liquidator or any other person pursuant to sect. 25 of the *^^ ^'
Companies (Winding-uji) Act, 1890, shall be made ex parte, and shall be supported
by a report to the Coiut filed with the pi-oceedings, stating the circumstances in
which the application is made.

(2.) The report may be signed by any person duly authorized to sign documents
on behalf of the Board of Trade ; and shall, for the purposes of such application,
be prima facie evidence of the statements therein contained.

r2



244



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



A power similar to that conferred by sect. 25 (2) is given by sect. 91 (2) of the
Bankruptcy Act, 1883.

E. 171 was inserted to carry out sub-sect. 2 of sect. 25.

The application is made by ex parte summons. See R. 3 of April, 1892.

Special forms of ex parte summons, report, and summons to attend for examina-
tion, have been prepared by the advisers to the Board of Trade.



Statement for
Registrar of
Joint Stock
Companies.



Penalties for
default.



Undistributed

assets.



Powers of

Bankrui)tcy

Act.



Board of
Trade order
for payment.



Section
ai)j)lioH to all
liquidations.



Accounts and Procedure under Sect. 15 of 1890.

Information as to pending Liquidations — Unclaimed and Undis-

TEiBUTED Assets.

Sect. 15 of 1890. — (1.) If the winding-up of a company is not concluded within
one year after its commencement, the liquidator of the company shall, at such inter-
vals as may be prescribed, until the winding-up is concluded, send to the Registrar
of Joint Stock Companies a statement in the prescribed form and containing the
prescribed particulars with respect to the proceedings in and position of the liqui-
dation. Any person stating himself in writing to be a creditor or contributory of
the company shall be entitled, by himself or by his agent, at all reasonable times,
on 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 un-
truthfully so stating himself to be a creditor or contribiitory shall be guilty of a
contempt of Court, and shall be punishable accordingly on the application of the
liquidator or of the official receiver.

(2.) If a liquidator makes default in complying with the requirements of this
section he shall be liable to a fine not exceeding fifty pounds for each day during
which the default continues.

(3.) If it appears from any such statement or otherwise that any liquidator of a
company has in his hands or under his control any money representing unclaimed
or undistributed assets of the company which have remained unclaimed or undis-
tributed for six months after the date of their receipt, the liquidator shall forthwith
pay the same to the companies' liquidation account at the Bank of England.
Every such liquidator shall be entitled to the prescribed certificate of receipt for the
moneys so paid, and that certificate shall be an effectual discharge to him in respect
thereof. [See Re Cornish, (1896) 1 Q. B. 95.]

(4.) For the jjurpose of ascertaining and getting in any money payable into the
Bank of England in pursuance of this section, the like powers may be exercised,
and by the like authority as are exerciseable under sect. 162 of the Bankruptcy Act,
1883, for the purpose of ascertaining and getting in the sums, funds, and dividends
referred to in that section.

(5.) Any person claiming to be entitled to any money paid into the Bank of
England in pursuance of this section may apply to the Board of Trade for payment
of the same, and the Board of Trade may, on a certificato by the liquidator that
the person claiming is entitled, make an order for the payment to that person of the
sum duo. Any person dissatisfied with the decision of the Board of Trade in
respect of any claim made in pursuance of this section may appeal to the High
Court.

(6.) This section shall apply whether the winding-up of the company has com-
menced before or after the commencement of this Act.

Sect. 15 has been held to apply to winding-up by the Court, or voluntarily, or
under supervision, whether the winding-up commenced before or after the 1st of
Jan. 1891. Stock and Share, ^-c. Co., (1894) 1 Ch. 736, a decision in accordance
with an opinion oxprcHScd in a former edition of this work.



PKOCEDURE UNDEE S. 15 OF 1890. 245

Procecdinga under sub- sect. (2) would probably be by the Crown on tlie Revenue
side of the Quoeu's Eench Division, and are not within the sco]3e of this work.

E. 126 of 1890. — The winding-up of a company shall, for the pui'poses of sect, lo When
of the Companies (Winding-up) Act, 1890, be deemed to be concluded— winding-up ^^

(a) In the case of companies wound up by order of the Court, at the date on .*2?V^ ^ , ,

, , 1 i . T 1 ,1 T •■! i within 8. lo.

which the order dissolving the company has been reported by the liquidator

to the Registrar of Joint Stock Companies :

(b) In the case of companies wound up voluntarily or under the supervision of

the Com-t, at the date of the dissolution of the company, unless at such
date any funds or assets of the company remain unclaimed or undistributed
in the hands or under the control of the liquidator, or any person who has
acted as liq^iidator, in which case the winding-up shall not be deemed to
be concluded until such funds or assets have either been distributed or paid
. into the comx^mies' liquidation account at the Bank of England.
It may be doubted whether the power to make rules justifies a rule which gives
to a section of the Act a wider operation than its terms import. Sect. 15 only pro-
vides for a case in which the wiading-iip " is not concluded within one year after
its commencement." Now a dissolution order cannot, under sect. Ill of the Act of
1862, be made until the affairs of the company have been completely wound up.
Suppose, then, that the afPau-s of a company have been completely wound up within
the year, surely the winding-up has been concluded within the meaning of sect. 15
of the Act of 1890, and if so, how, it may be said, can rules made under that Act
interpret the word "concluded" so as to extend the operation of the section.

R. 127 of 1890.— [TAe original rule of 1890 was annulled hj H. 8 of April, 1891, and
the following rules (1 to 4) of April, 1891, were substituted^ : —

1. [127.] The statements with respect to the proceedings in and position of a Statement by
liquidation of a company, the winding-up of which is not concluded within a year liquidator to
after its commencement, shall be sent twice in every year, as follows : — • "^j. g(.Qg]j.

(1.) Where the winding-up commenced on or before the first day of Ai^ril, 1890, companies

and was not concluded before the 1st day of April, 1891, the first state- under s. 15

of 1890
ment, brought down to the 31st day of March, 1891, shall be sent within

thirty days from the first day of May, 1891, or within such extended period

as the Board of Trade, or (where the winding-up is by or subject to the

supervision of the Court) as the judge may in any particular case sanction,

and the next statement, brought down to the 30th day of September, 1891,

shall be sent within thii'ty days from that date.

(2.) Where the winding-up did not commence on or before the first day of April,
1890, the fii'st statement, commencing at the date when a hquidator was
first appointed and brought down to the end of twelve months from the
commencement of the winding-up, shall be sent within thirty days from
the expiration of such twelve months, or within such extended period as
the Board of Trade may sanction.

(3.) The subsequent statements shall be sent at intervals of half a year, each
statement being brought down to the end of the half year for which it
is sent.

2. [127a.]— (1.) Subject to the next succeeding rule, Form No. 75, with such Form,
variations as circumstances may require, shall be used, and the directions specified

in the Form shall (unless the Board of Trade otherwise direct) be observed in
reference to eveiy statement.

[The Form 75 referred to in this rule has since been annulled, a new Form 75
being substituted therefor, by the Board of Trade Order of 8th Jan. 1892, infra.']

(2.) Every statement shall be sent in duplicate, and shall be verified by an Duplicate and
affidavit in the Form No. 75a, with such variations as circumstances may require. verification.



246



WINDING-UP BY THE COURT. j^ClIAP. XXIV.



3. [127 b.] Whei'e the winding-up comraonced on or before tlie first day of April,

1890, and was not concluded before the fii'st day of April, 1891 —

(1.) The first statement shall, unless the Board of Trade, on the application of

the liquidator, otherwise dii'ects, commence at the date when a liquidator

was first appointed.

(2.) In any winding-up in which the accounts of the liquidator have been passed

in the Chambers of a judge of the Chancery Division of the High Court

prior to the first day of January, 1891, and in any case in which it shall

appear to the Board of Trade inexpedient to require a detailed statement

of all the liquidator's receij)ts and payments on account of the company,

the statement may be sent in the form of such a summary of the liquidator' s

accounts as the Board of Trade shall a^jprove.

Affidavit of 4. [127 c.] Where a liquidator has not during any period for which a statement

no receipts or -^^^ ^^ -[^g ^^^^ received or paid any money on account of the company, he shall at

the period when he is required to transmit his statement, send to the Registrar of

Joint Stock Companies an affidavit of no receipts or payments in the Form No. 75a.



payments.



Payment into
companies'
liquidation
account.



Particulars of
funds and
verification.



Verified
account and
audit.



Powers under

Bankruptcy

Act.



UncIiAHIED Funds aito Undisteibuted Assets in the hands of the Liquid atoe,
(See sub-sects. 3 to 5 of sect. 15 op 1890, supra.)

E. 5 of April, 1891, is as follows : —

5. [127 d.]— (1.) All money in the hands or under the control of a liquidator of a
company representing unclaimed dividends, which for six months from the date
when the dividend became payable have remained in the hands or under the control
of the liquidator, shall forthwith, on the expiration of the six months, be paid into
the companies' liquidation account.

(2.) All other money in the hands or under the control of a liquidator of a com-
pany, representing unclaimed or undistributed assets, which under sub-sect. 3 of
sect. 15 of the Companies (Winding-up) Act, 1890, the liquidator is to pay into the
companies' liquidation account, shall be ascertained as on the date to which the
statement of receipts and payments sent in to the Registrar of Joint Stock Companies
is brought down, and the amount to be paid to the companies' liquidation account
shall be the minimum balance of such money which the liquidator has had in his
hands or under his control during the six months immediately preceding the date to
which the statement is brought down, less such part (if any) thereof as the Board
of Trade may authorize him to retain for the immediate purposes of the liquidation.
Such amount shall be paid into the companies' liqmdation account within fourteen
days from the date to which the statement of account is brought down.

E. 128 of 1890. — Eveiy person who has acted as liquidator of any company,
whether the liquidation has been concluded or not, shall fm-nish to the Board of
Trade particulars of any money in his hands or under his control representing
unclaimed or undistributed assets of the company on the 1st January, 1891, or
subsequently, and such other particulars as the Board of Trade may require for
the purpose of ascertaining or getting in any money payable into the companies'
liquidation account at the Bank of England. The Board of Trade may require
such particulars to be verified by affidavit.



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 36 of 134)