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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E. 129 of 1890. — (1.) The Board of Trade may at any time order any such person
to submit to tlicm an account verified by affidavit of the sums received and paid by
him as liquidator of the company, and may direct and enforce an audit of the
account.

(2.) For tho purposes of sect. 15 of the Companies (Winding-up) Act, 1890, and
these rules, tho Court (as licreinaftcr defined) sliall have and, at tho instance of the
Board of Trade, may exercise all tho powers conferred by the Bankruptcy Act,



PROCEDURE ITN'DER R. 15 OF 1890- '247

1883, with respect to the discovery and realization of the property of a debtor, and
tlie provisions of Part I. of that Act with respect thereto shall, with any necessary
modifications, apply to proceedings under sect. 15 of the Companies (Winding-up)
Act, 1890. [See the bankruptcy provisions, infra.']

[130 of 1890 annulled. See It. 130 (a), viz. li. 7 of Ajjril, 1891, below, tvhich is
siibstitntrd.]

R. 130a of 1890.— [The original R. 130 of 1890 ivas annulled hj 11. 8 of April, 1891,
and no now R. 130 was made, but the followiug R. 130a was substituted by R. 7
of April, 1891J :—

7. [130a.] Every application by the Eoard of Trade for the purpose of ascertain- Wlicre and
ing and getting in money payable into the Bank of England pursuant to sect. 15 .'."^.^^'Pp^^' .1.
of tho'Companies (Winding-up) Act, 1890 — made.

(«.) Where the icinding-tq} is by or subject to the supervision of the High Court, shall
be made to and dealt with by the judge to xvhom the tvinding-up is assigned,
upon motion in accordance with the practice of the Chancery Division of the
High Court relating to motions ;

[The words ia italics were annulled by R. 34 of April, 1892. "As to any
winding-up in the High Coui't to which these rules apply" — i. e., any winding-up
before Vaughan WUliams, J. In cases before that judge, R. 16 of April, 1892
{infra), applies.]

{b.) Where the winding-up is in the Stannaries Com-t, shall be made upon motion
before the Vice-Warden. [This Court -was abolished in 1896, and its juris-
diction transferred to the County Courti ;

(c.) Where the winding-up is in a Palatine Court or a County Court, shall bo
made to that Court ;

{d.) In other cases, shall be made to the judge of the High Court who for the
time being exercises the jurisdiction of the High Court in bankruptcy, and
in accordance with the practice which is observed in reference to applica-
tions by the Board of Trade under sect. 162 of the Bankruptcy Act, 1883.

Rr. 8 and 9 of April, 1891, are as follows :^

8. R.s. 127 and 130, and Form No. 75 of the Companies (Winding-up) Rules, Annulnient

1890, are annulled as from the date on which these rules come into operation. of certam

rules.

9. These rules shall come into operation on the thirty-first day of May, 1891.

They shall be construed with and deemed to form part of the Companies (Winding- " ?^ °
ujd) Rules, 1890, and each of these rules maybe cited with reference to those rules by
the number in square brackets set against the rule at the commencement thereof. The
forms annexed to these rules shall be deemed to form part of the forms annexed to
the Companies (Winding-up) Rules, 1890, and each of the forms annexed to these
rules may be cited with reference to the forms annexed to the Companies (Winding-
up) Rules, 1890, by the number x^laced at the head of the form.

R. 16 of April, 1892. — Every application by the Board of Trade for the purpose Application to
of ascertaining and getting in money payable into the Bank of England, pui-suant itiS^i Court,
to sect. 15 of the Companies (Winding-up) Act, 1890, shall in a -svinding-uj) in the
High Court to which these rules apply be made and dealt with by the judge of the
High Court upon motion.

Rr. 131 and 132 of 1890, are as follows:—

131. Any liquidator whose duty it is under sect. 15 of the Companies (Winding- Paying-in
up) Act, 1890, to pay into the companies' liquidation account at the Bank of order.
England, any money representing unclaimed or undistributed assets of the company

shall apply in such manner as the Board of Trade may direct to the Board of Trade
for a paying-in order, which paying-in order shall be an authority to the Bank of
England to receive the payment.

132. An application by a person claiming to be entitled to any money paid into Claimant's



248



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



application
for payment.



tlie Bank of England in pursuance of sect. 15 of the Companies (Winding-up) Act,
1890, shall be made in such form and .manner as the Board of Trade may from
time to time direct, and shall, unless the Board of Trade otherwise directs, be
accompanied by the certificate of the liquidator that the person claiming is
entitled, and such further evidence as the Board of Trade may direct. [_See R. 1 32a,
below.']

R. 132a of imO.— [The following rule was added hj R. 6 of April, 1891] : —
Payments out. 6. [132a.] Where the liquidator requires to make payments out of money paid
into the Bank of England, in pursuance of sect. 15 of the Companies (Winding-up)
Act, 1890, either by way of distribution or in respect of the costs and expenses of
the proceedings, he shaU apply in such form and manner as the Board of Trade
may direct, and the Board of Trade may thereupon either make an order for the
payment out to him of the sum required to make such payments, or may direct
cheques to be issued to him for transmission to the persons to whom the payments
are to be made.

R. 133 of 1890. — (1.) For the purposes of sub-sect. (3) of sect. 15 of the Companies
(Winding-np) Act, 1890, money at the credit of the account of the official liquidator
of any company with the Bank of England shall be deemed to be money under the
control of the ofiicial liquidator, and when such money has remained unclaimed or
undistributed for six months after the date of receipt it shall be transferred to the
companies' liquidation account, and the official liquidator and chief clerk of the
Chancery Division of the High Coui't shall draw and sign such cheques or orders as
may be necessary for the transfer of the money.

(2.) Any application to the Board of Trade for payment out of moneys so trans-
ferred shall be signed by the liquidator and countersigned by the chief clerk of the
judge of the Chancery Division to whom the winding-up is assigned.



Money under
' ' control of
official
liquidator."



Bankruptcy Provisions.

Sect. 15 (4) of 1890 (supra) incorporates sect. 162 of the Bankruptcy Act, 1883 ; and
R. 129 (2) of 1890 (supra) extends to winding-up, for the purposes of sect. 15 of
1890, " all the powers conferred by the Bankruptcy Act, 1883, with respect to the
discoveiy and realization of the property of a debtor and the provisions of Part I.
of that Act with respect thereto * * * * with any necessary modifications."
Sect. 162 of Bankruptcy Act, 1883, is (so far as material) as follows : —
Ke-onactment [(1) and [2] («) onli/ provide for 2Ja!/ment in ly tlie persons therein mentioned, of un-
byActofl890. claimed a>id undistributed mojieys. Sect. 15 (3) o/1890 re-enacts these provisions, with
the necessary modifications ivith reference to winding-up, and therefore there is no need
to incorporate them.']
Verified (2) [b). The Board of Trade may at any time order any such trustee or other person

account. to submit to them an account verified by affidavit of the sums received and paid by

him imder or in pursuance of any svich petition, resolution, deed, or other proceed-
ing as aforesaid, and may direct and enforce an audit of the account. [This is re-
provided, with the necessary modifications, by E. 129 (1) o/1890, stipra.]
Appointment (c) The Board of Trade, with the concurrence of the Treasury, may from time
of collector. to time ajjpoint a person to collect and get in all such unclaimed or undistributed
funds or dividends, and for the pui-poses of this section any Court having jurisdic-
tion in bankrui)tcy shall have and at the instance of the person so appointed, or of
the Board of Trade, may exercise all the powers conferred by this Act with respect
to the discovery and realisation of the property of a debtor, and the provisions of
Pai-t I. of this Act with respect thereto shall, with any necessary modifications,
apply to proceedings imdcr this section.



PROCEDURE UNDER S. 15 OF 1890. 249

(3.) The provisions of this section shall not, except aa expressly declared hero,
deprive any person of any larger or other right or remedy to which he may be
entitled ag-ainst such trustee or other person.
[(4.) is ill effect the same as sect. 15 (.5) of 1890.]

[(5.) emjjoivers the Board of Trade io open a " Banlrruptcij Estate Accotmt,''^ the
equivalent in hanJ;riiptcy of^^ The Companies Liquidation Account^' in icinding-up.']

Sect. 27 of Bankruptcy Act, 1883 (with reference to discovery of a debtor's pro- Discovery
perty) is as follows :— of property.

(I.) The Court may, on the application of the official receiver or trustee, at any
time after a receiving order has been made against a debtor, summon before it the
debtor or his wife, or any person known or suspected to have in his possession any
of the estate or effects belonging to the debtor, or supposed to be indebted to the
debtor, or any person whom the Court may deem capable of giving information
respecting the debtor, his dealings or property, and the Court may require any such
person to produce any documents in his ciistody or power relating to the debtor, his
dealings or property.

(2.) If any person so summoned, after having been tendered a reasonable sum,
refuses to come before the Court at the time appointed, or refuses to produce any
Buch document, having no lawful impediment made known to the Court at the time
of its sitting and allowed by it, the Court may, by warrant, cause him to be
apprehended and brought up for examination.

(3.) The Court may examine on oath, either by word of mouth or by written
interrogatories, any person so brought before it concerning the debtor, his dealings
or property.

(4.) If any person on examination before the Court admits that he is indebted to
the debtor, the Court may, on the application of the official receiver or trustee,
order him to pay to the receiver or trustee, at such time and in such manner as to
the Court seems expedient, the amount admitted, or any part thereof, either in full
discharge of the whole amount in question or not, as the Court thinks fit, with or
without costs of the examination.

(5.) If any person on examination before the Court admits that he has in his
possession any property belonging to the debtor, the Court may, on the apphcation
of the official receiver or trustee, order him to deliver to the official receiver or
trustee such property, or any part thereof, at such time, and in such manner, and
on such terms as to the Court may seem just.

(6.) The Court may, if it think fit, order that any person who if in England
would be liable to be brought before it under this section shall be examined in
Scotland or Ireland, or in any other place out of England.

Under the very similar words of sect. 96 of the Bankruptcy Act, 18G9, the trustee
in bankruptcy might be ordered on the application of a creditor to submit himseK
for examination. Ex parte Crossleij, 13 Eq. 409. And a creditor might be ordered
to be examined on the application of the bauki-upt. See Ex parte Austin, 4 C. Div.
13. And see Ex parte Sheffield, 10 C. Div. 434 ; Ex parte Nicholson, 14 C. Div.
243.

And see also sect. 25 of 1890, and R. 171 of 1890, supra.

Qu(cre, whether R. 129 of 1890 does not incorporate the following provision, in
respect of proceedings under sect. 15 of 1890.

Sect. 102 (5) of Bankruptcy Act, 1883. — (5.) "Where default is made by a trustee. Disobedience
debtor, or other person in obeying any order or direction given by the Board of to Board of
Trade or by an official receiver or any other officer of the Board of Trade under any ^.^^ .?• ^
power confeiTcd by this Act, the Court may, on the application of the Board of
Trade or an official receiver or other duly authorized i^erson, order such defaulting
trustee, debtor, or person to comply with the order or direction so given ; and the



25(J



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



Court Hiay also, if it shall think fit, upon any such application make an immediate
order for the committal of such defaulting trustee, debtor, or other person ; pro-
vided that the power given by this sub-section shall be deemed to be in addition to
and not in substitution for any other right or remedy in respect of such default. See
Re Tatum, 60 L. T. 896.
New form B. T. Order of 8th Jan. 1892.— Pui-suant to clause 2 of R. 3 of the Companies

of liquidator's (Winding-up) Rules, 1890, the Board of Trade hereby substitute the form of
liquidator's statement of account set out at the foot hereof in lieu of the existing
Form No. 75 in the Appendix to the Companies (Winding-up) Rules of the
SOtli April, 1891, and henceforth the substituted Form shall be the Form No. 75
referred to in R. 2 (127a) of the said Rules.
Dated this Sth day of January, 1892.
By order of the Board of Trade.

John Smith, Inspector-General in Companies Liquidation,
authorized in that behalf by the President of the Board of
Trade.



Form 219.

Liquidator's
statement of
account under
sect. 15 of
1890 (direc-
tions).



No. of company .

Form of Statement of Eeceipts and Payments and General
Directions as to Statements.

Size of Sheets.
(1.) Every statement must be on sheets 13 Indies by IG inclies.

Form and Contents of Statement.

(2.) Every statement must contain a detailed account of all tbe
liqr's realizations and disbursements in respect of tbe coy. The state-
ment of realizations should contain a record of all receipts derived
from assets existing at the date of the winding-up order or resolution
and subsequently realized, including balance in bank, book debts and
calls collected, pi^ty sold, &c. ; and the account of disbursements
should contain all payments for costs and charges, or to creditors, or
contributories. Where ppty has been realized, the gross proceeds
of sale must be entered under reahzations, and the necessary payments
incidental to sales must be entered as disbursements. These accounts
should not contain payments into or out of bank, or temporary invest-
ments by the liqr, or the proceeds of such investments when realized,
which should be shown separately : —

(a) 15y means of the bank pass book ;

(b) By a separate detail statement of moneys invested, and invest-

ments realized.
Interest allowed or charged by the bank, bank commission, &c., and
profit or loss upon the realization of temporary investments, should,
however, be inserted in the accounts of realizations or disbursements,
as the case may be. Each receipt and payment must be entered in
the account in such a manner as sufficiently to explain its nature.



PROCEDURE UNDER S. 15 OF 1890.



251



■The receipts and payments must severally bo added up at the foot of
each sheet, and the totals carried forward from one account to another
without any intermediate balance, so that the gross totals shall
represent the total amounts received and pd by the liqr resply.



Trading Account.

(3.) When the liqr carries on a business, a trading account must bo
forwarded as a distinct account, and the totals of receipts and jjay-
ments on the trading account must alone bo set out in the statement.



Dividends, Sfc,

(4.) "When dividends or instalments of composition are pd to cre-
ditors, or a return of surplus assets is made to contributories, the total
amount of each dividend, or instalment of composition, or payment to
contributories, must be entered in the statement of disbursements as
one sum ; and the liqr must forward separate accounts showing in lists
the amount of the claim of each creditor, and the amount of dividend
or composition payable to each creditor, and of surplus assets payable
to each contributory, distinguishing in each list the dividends or instal-
ments of composition and shares of surplus assets actually pd and those
remaining unclaimed. Each list must be on sheets 13 inches by
8 inches.

[There is now a foot-note to tlie effect that the statement is required in duplicate.]



Name of coy .

Nature of proceedings (whether wound up by the Ct, or under the

supervision of the Ct, or voluntarily) .

Date of commencement of winding-up .



Date to which statement is brought down
Name and address of liqr .

Eealizations.



Date.


Of whom Received.


Natm-e of Assets Realized.


Amount.
£ s. d.























Form 220.

Liquidator's
account under
sect. 15 of
1890 (as used)



252



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



Disbursements.



Date.


To -whom Paid.


Natm-e of Disbursements


Amount.
£ s. d.




















* Note. — No balance should be sliewn on this account, but only the total realiza-
tions and disbursements, which should be carried forward to the next account.



Analysis of Balance.

£ s. d.

Total realizations ,, ,,

,, disbui'sements ,, ,,

Balance ,, ,,

The balance is made up as follows : —

1 . Cash, in hands of liqr ,, ,,

£ s. d.

2. Amounts invested by liqr ,, ,,

(«s ^jcr separate account herewith)
Less amounts realized from same ,, ,,

Balance of amount invested .... n > .

& s. d.

3. Total payments into bank, including bal-

ance at date of commencement of wind-
ing-up {as per hank hook) ,, ,,

Total withdrawals from bank ,, ,,

Balance at bank ,, ,,

Total balance as shown above ,, ,,

[Note



PROCEDURE UNDER S. 15 OF 1800.



253



Note. — Tho liqr slaould also state —

(1.) Tho amount of the estimated assets and \
liabilities a't the date of the commence- >
ment of the winding-up )

(2.) Tho general description and \
estimated value of outstand- |
ing assets (if any) )

(3.) The causes which delay the termination )
of the winding-up )

(4.) Tho period within which the winding-up \
may probahly be completed )



Assets . . .
Liabilities ,



(Name of Coy.)



Form 221.



Q-. H., the liqr of the above-named coy, in account with the estate. Liquidator's

Eeceipts. Payments. trading

■*• ^ "^ account.

[7%e Dr. atid Cr. colum7is are inserted here as in Form 80 of 1890, Form 7.5b of

supra, Form 211.] ^P- 1S91.

(Date)

Liqr.

See Direction 3 in Order of 8th January, 1892, supra.



(Name of Coy.) Form 222.

I hby certify that a dividend (or composition) of in the £ List of

was declared payable on and after the day of 18 — , and that <ii^i*iends or

^ '' ./ 7 composition.

the creditors whose names are set forth below are entitled to the Foma 75c of
amounts set opposite their respve names, and have been pd such -^P" ■^^^^■
amounts except in the cases specified as unclaimed.

Liqr.

Dated the day of 189—.

To the Board of Trade.









Amount of Dividend or Composition.


Surname.


Christian Name.


Amount of Pi-oof .










Paid.


Unclaimed.






£


s.


d.


&


s.


d.


£


s.


d.



See Direction 4 in Order of 8th January, 1892, supra.



254



WINDING-UP BY THE COURT. fCHAP. XXIV.



Form 223.

List of
amounts paid
or payable to
contribu-
tories.

Form 75d of
Ap. 1891.



(Name of Coy.)
I hby certify that a return of surplus assets was declared payable

to contributories on and after the day of 18 — , at the rate

of per share, and that the contributories whose names are set

forth below are entitled to the amounts set opposite their respve names,
and have been pd such amounts except in the cases specified as un-
claimed.

Liqr.

Dated the day of , 189—.

To the Board of Trade.



Siimame.


Christian Name.


No. of Shares.


Amount returned on Shares.


Paid.


Unclaimed.








£


s.


d.


£


s.


d.



See Direction 4 in Order of Sth January, 1892, supra.



Form 224.

Affidavit
verifying
liquidator's
statement of
account.
Form 7oa of
Ap. 1891.



(Name of Coy.)
-, the liqr of the above-named coy, mate oath and



I, G. H., of

say:—

That '■'' the account hereimto annexed marked "^" contains a full and
true account of my receipts and payments in the tvindiny-up of the above-
named coy from the day of 18 — , to the day of

189 — inclusive, *anJ that I have not, nor has any other person by my
order or for my use, during such period received any moneys on account
of the sd coy '^' other than and except the items mentioned a7id specif ed i?i
the sd accotint.

Sworn at kc.

* Note. — If no receipts or payments, strike out the words in italics.
The above form is applicable under both R. 127a and R. 127c, supra.



Accounts to Board of Trade as to Unclaimed Funds and Undis-
tributed Assets.

Sect. 15 (3) of 1890, supra.

If it Jippoars from any such statement or otherwise that any liquidator of a com-
pany lias in his hands or under liis control any money rcpresentiag unclauncd or
undistributed assets of the company which have remained unclaimed or undistri-
buted 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 * * * *,

On the Ijlst December, 1890, Sir M. Hicks-Beach, under sect. 16, issued a notice,
■which appeared in the Gazette of the 2nd January, 1891, requiring " any and every
li(luidator of a company forthwith to pay to the said account the money in their



PROCEDURE UNDER S. 15 OF 1890. 255

hands or imder their control, obtaining in the first instance a receivable order from
the Board of Trade, and that upon such payment the Board of Trade wUl furnish
to such liquidators a certificate of receipt of the money so paid, which shall bo an
effectual discharge in respect thereof."

The Board of Trade is of course cognizant of every winding-up which takes
place, whether comi^ulsory, voluntary, or imdcr supervision, and where amounts
are not duly accounted for, the liquidator may expect the following letter (Board
of Trade Form C, No. 8) from the Inspector- General in Companies Liquidation : —



"The Cos Act, 1862, and the Cos (Winding-up) Act, 1890, s. 15. Form 226.
" \_Adch'ess of Office, Date, and Title of Matter. '\ Request of

" Sir, — I am directed by the Board of Trade to call your attention Board of
to sect. 15 (3) of the Cos ("Winding-up) Act, 1890 [and Eulo 128], •'' and liquidator to
to the powers conferred upon the Board of Trade thereunder, and I give par-

ticultirs 01
am to request that you will insert in the accompanying form [C. No. 9] unclaimed

particulars of the amounts, if any, due to the Cos Liquidation Account and undis-

in the matter of the above coy, of which you appear to have been assets.

appointed liqr."

The letter concludes with a note as to the requirements of sect. 15, and endorsed
on it are copies of sect. 15 of 1890, sub-s. 3, 4, 5, and 6 ; and Er. Vll'D, 128, 129,
1:30a, 131, 132, 132a, and 133.

* These words are added in the case of companies wound up within a year. The
form C. No. 9 is Form 226, below.



The Cos Act, 1862, and the Cos (Winding-up) Act, 1890. Form 226.

In the Matter of the Coy, Limtd. .; '. ;

^ . .^^. T . ^ T I'articmars to

Date of Wmdmg-up Order be furnished

(or of Eesolution for Winding-up) "?! hquidator

^ o J. / jj^ answer to



I, , of , the liqr of the above-named coy, hby certify that request by

the following statement is a correct return of the unclaimed dividends ^^^^ °*
or undistributed moneys in my hands or under my control, which are Form C.
due to the Cos Liquidation Account under sect. 15 of the Cos (Winding- ^°- ^•
up) Act, 1890.

[Signatui-e] .

Dated 189—. £ s. d.

Unclaimed dividends

Undistributed moneys

Total amount due to the Cos Liquidation Account £

See notes to last form.

{Title.)

Fortn 227

I, , of , make oath and say that the particulars entered in 1



the statement hereunto annexed, marked A, are correct, and truly set Affidavit

V6rifyiu<^

forth all money in my hands or under my control, representing account tjf



256



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



unclaimed
and undis-
tributed
funds.
Torm 82 of
1890.



Form 228.

Board of
Trade order
on liquidator
to submit
verified
account.
FormC.
No. 44.



unclaimed or undistributed assets of the above coy, and tbat tbe
amount due by me to tbe cos liquidation account in respect of un-
claimed dividends and undistributed funds is £ .



Sworn, &c.



(Signature)



This is the affidavit which the Board of Trade may require under R. 128 of



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