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Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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landlords; distress; re-entry; rates. 343

opinion that W. 11., of , shall have sustained any by reason of tho

order which the sd liqrs ought to pay, This Ct doth order that W. and
J., their servants, agents, and workmen, bo restrained until tho 30th
May, 1884, from selling tho goods and chattels distrained upon on the
leasehold premises of the coy, and liqrs to bo at liberty to serve notice
of motion for injunction for 30th May, 1884. hice Hall Co., Chitty, J.,
28th May, 1884. A. 737.

Upon motion by prov off liqr, &c., Restrain the South Staffordshire Form 385.
Mines Commissioners from selling any goods of the coy distrained by TTTT '

them, or otherwise proceeding with the distress levied by them on tho
goods of the coy until, &c. Oakham Collieries Co., M. E., 10th July,
1880. And s,qq Automatic Aeration Co., 0125 of 1892. Eeg., 3rd Dec,
1892.

Upon the apphcon of the prov liqrs, and upon hearing the solor for Form 386.

the applicants and for the landlord, and upon reading the order dated Order con-

17th May, 1883, and the afit of W., and the order of 19th May, 1883, tiauing

Order that the order made in this matter, and dated 19th May, 1883 an^f^dii-ectiu^

[interim order against selling under distress^, be continued until further delivery of

order of this Ct. And it is fiu-ther ordered that the sd H. do deliver ^^° ''"
up possession of the goods and chattels belonging to the sd coy iipon
which he has distrained to the sd prov liqr. Art Furtiishers' Co.,
Pearson, J., 23rd May, 1883. A. 782.

Upon motion this day made unto this Ct by counsel for W., and Form 387.
upon hearing counsel for S., and upon reading the order, dated the X~T TT
5th of Jan., 1891, whereby [distress restrained^ an afft, of &c., this charging-
Ct doth order that the sd order dated the 5th of Jan., 1891, be p^der restrain-

' ' , ing distress,

discharged. And it is ordered that the sd S. do pay to the sd W. his and for

costs of the sd order, such costs to be taxed by the taxing master. And "iqu"T as to

. . . damages,

it is ordered that the following inquiry be made, that is to say, an

inquiry whether any and what damages have been sustained by the sd

W. by reason of the injunction awarded by the sd order, dated the 5th

of Jan. 1891, having been granted which the sd S. ought to j)ay

according to his undertaking contained in the sd order. And in case

it shall appear that any such damage has been sustained, It is ordered

that the sd S. do pay to the sd W., within one month from the date of

the chief clerk's certificate to be made pursuant to this order, the

amount (if any) which shall be thereby certified for such damages.

And it is ordered that the costs of the sd inquiry be reserved. South

Metropolitan Brewing, Sj^c. Co., Kekewich, J., 17th Jan. 1891. B. 120.

An application to enforce such an undertaking should be made within reasonable
time. Sx parte Rail, 23 C. D. 644.



344



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



Form 388.

Liberty to
distrain.



Liberty to Distrain.

Upon the applieon of L., of , and upon hearing the respective

solors for the applicant, the joint off liqrs, the debenture-holders, and
Messrs. Bower, the vendors to the coy, and upon reading, &c., Order
that applicant be at liberty to distrain upon the goods and chattels
of the coy for the sum of 4,327/. 5s. lOcL, being the net arrears of
rent due to the applicant, accrued since the 11th of May, 1878, the
date of the order for winding-up the sd coy after deducting income
tax, in respect of the following ppty, leases, and agreements and in
the following sums (that is to say) : — [^Here follow two schedules^ one
referring to the properties, leases, and time for which rent due, and the
other stating the amounts.^ — Boicer Allerton Collieries, M. E., 30th July,
1878. A. 1597.



Form 389.

Another.



Upon the applieon of H., of , Order that applicant be at

liberty, notwithstanding the sd order dated 18th May, 1878, to proceed
with the distress put in by him upon the premises in the occupation of
the sd coy, and to sell the goods and chattels upon the sd premises for
the purpose of realizing the sum of 1,026/. 65. 2>d., due to him for rent
and royalties as of the sd colliery. And order that the afsd liqrs out
of the assets of the sd coy pay to the applicant the sum of 45/. 4s. Id.
for his costs of and incident to such distress and of this applieon as
between solor and client. Ivy House and Northivood Colliery Co., M. E..,
10th July, 1878. A. 1494.

Where arrears are not paid, and landlord determines to re-enter, he can apply to
the Court for an order against the official liquidator to give up possession. General
Share Trust, 20 C. Div. 260.

Where the property is of any value, such an application may in effect compel the
liquidator to pay the rent in arrear in order to retain the property.



Form 390. Upon the applieon of the off liqr, &c., Order that the sd off liqr out
of the assets of the sd coy pay to the sd V. the sum of 1,029/. 4s. Sd.,
the amount of rent and royalties due to him on the 31st March, 1877,
in respect of ppty leased to the sd coy situate at, &c. Darlaston Steel
and Iron Co., M. E., 16th June, 1877. A. 1127. See also order in
Granville Hotel Co. (00256 of 1895), Hood, Eeg., 6th Nov. 1895.



LiVjcrty to
pay rent.



Form 391.

Order to pay
landlord or
give up
possession.



Re-entry.

Upon the applieon of B., &c., Order off liqr to pay aj^plicant on or
before 18th Jan. 1884, 127/., being half-year's rent to 25th Dec.
instant, duo to the applicant in respect of the warehouses, &c., held by
coy of a^jplicant by virtue of an agreement, &c., and that in default of



landlords; distress; re-entry; rates. 345

sucli payment the sd applicant be at liberty to take possession of sd
premises, with the appurtenances, machinery, fixtures, and fittings
therein, and that the sd off liqr do pay to the sd applicant 91., being
the ascertained costs of and incident to this applicon. Fuller^ s Earth
Co., Chitty, J"., 8th Dec. 1883. A. 1901.

For order giving official liquidator liberty to arrange with landlords as to pumping,
so as to keep collieries free from water, and in default of arrangement order to
remove chattels and effects of company, see New North Staffordshire Coal Co.,
Pearson, J., 11th August, 1884, B. 1134.

Upon the applicon of the T. Coy, having their registered office at Form 392.

, by summons dated, &c., and upon hearing the solors for the -, ., '

applicants and for S., the off recr attached to this Ct, and the liqr of the landlord to
affairs of the above-named N. Coy, Limtd, and upon reading the order i"etake posses-
for winding-up of the sd N. Coy, Limtd, dated the 10th Aug. 1891,
the afft of &c., It is ordered that the applicants be at liberty to
re-enter ujoon and resume possession of the lands, mines, and here-
ditaments, situate in the State of T., in the Republic of Columbia,
demised for the term of twenty-one years computed from the 1st day
of Jan. 1881, by an indenture of lease dated the 2nd day of April,
1884, and made between the applicants of the one part and the
0. G. M., Limtd, of the other part, which said lands, mines, and
hereditaments were assigned to and are now, or lately, in the occupa-
tion of the sd N. Coy, Limtd, but without prejudice to the right of the
off recr as such liqr as afsd to remove or sell, within three months
from the date of this order, any machinery or parts of machinery upon
the sd premises which he may be entitled to remove. Neio Orcjanos
Gold Mining Co., Stirling, J., 8th April, 1892, 1891, N. 0266; and
see House Investors' Corporation, 0052 and 00144 of 1892, 12th Dec.
1892.



Upon the applicon of \lessor\ Sec, It is ordered that the applicant Form 392a.
S. be at liberty to re-enter in accordance with the powers contained in Libertv to
the sd indenture of lease upon the mines and premises thereby demised lessor to re-

to the above-named Coy, Limtd, or occupied by the sd coy under ^^ ^^'

the provisions, or any of them, contained in the sd indenture of lease.
Orrel Coal and Cafmel Co. (0086 of 1895), Hood, Eeg., 20th June,
1895.

Upon the applicon of "W., the liqr, &c., Order that applicant be at Form 392b.
liberty to enter into arrangement for surrender of sd lease to the sd f TT"^
respondents, R. and K. And that upon the sd respondents accepting accepting sur-
a surrender of the sd lease they be admitted to prove as creditors of sd ^''^^^Vf ^^
coy for the loss sustained by them by reason of such surrender, in prove for

damages.



346 WINDING-UP BY THE COURT. [ClIAP. XXXV.

respect of the contingent and future liabilities of the sd coy, as lessee
under the sd lease in respect of rent becoming due after the sd
11th Nov., 1895, and in respect of breaches of the covenants by the
sd coy contained in the sd lease after that date, in respect of the here-
ditaments comprised in the sd lease. And that it be referred to the
Registrar, Coys Winding-up, to inquire and ascertain the amount of such
loss, such amount to be certified by the sd registrar. And that the
costs of the sd W. and of the sd E. and K. of the sd applicon be
taxed and pd out of the assets of the sd coy, the costs of the sd W. to
be taxed as between solor and client. And costs of inquiry reserved,
and liberty to apply. Panther Lead Co., Eomer, J., 14 May, 1896.

See as to the above the note preceding Form 384, siqjra.

Form 392c. Rates.

Order re- Ujpon motion, &c., for , the liqr of the above-named coy, and

tress for^rate. i^poii reading the peton of T. B., on, &c., preferred unto this Ct, and
two affts, &c., and {ustial undertaking'), Order that the corporation of
the borough of Hanley, their solors and agents, be restrained until
after the hearing of the sd peton from proceeding to levy a distress on

the goods of the sd coy in respect of the rate or sum of 1, in the

sd afft of the sd mentioned. Hanleij Hotel Co., Limtd, M. E.,

23rd May, 1876. A. 881.

Except to the extent specified in the Act of 1888, infra, p. 397, rates due at com-
mencement of winding-up have no priority. Brij Docks Corporation, 39 0. D. 306 ;
and if needs be the Court will restrain a distress as above ; and see Re Blazer Fire
Lighter Co., (1895) 1 Ch. 402.

But where the liquidator keeps on the property with a view to selling, he may be
ordered to pay rates and taxes falling due subsequently, as part of the expenses of
the -winding-up. National Arms, ^-c. Co., 28 C. Div. 474 ; International Marine, ^-c.
Co., 28 C. D. 470. But no such order will be made unless the liquidator's possession
has been beneficial. Watson, Kipling S; Co., 23 C. D. 500.

The test is whether there has been a beneficial occupation within the meaning of
the rating statutes, e.g., by a caretaker : Blazer Fire Lighter, (1895) 1 Ch. 402.

Compare above cases with Marriage, Keave ^- Co., (1896) 2 Ch. 663, a case of a
receiver in a debenture action.

No apportionment. Wcarmouth Crown Glass Co., 19 C. D. 640.

As to demand of poor rates, see 31 & 32 Vict. c. 122, s. 40.

Eent, See siq^ra, p. 342.



347



CHAPTER XXXYI.

GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES.

As to first meetings of creditors and contributories, see Chap. XVII.

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

The power of the Court to act under this and the next following section is not Power of
affected by the Act of 1890, although that Act and the rules thereunder enable the Court to
liquidator to convene meetings in a winding-up. See infra, sect. 23 of 1890. summon.

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

Sect. 13 of 1890. — General rules may be made for requiring or enabling all or
any of the powers and duties conferred and imposed on the Court by sect. 91 ... .
to be exercised or performed by the Hquidator as an officer of the Court, and subject
to the control of the Coui-t.

[The rules below have been made under this section.]

Sect. 23 of 1890. — (1.) Subject to the provisions of the Companies Acts, the liqui- Liquidator's
dator of a company which is being wound up by order of the Court shall, in the po^^r to
administration of the property of the company, and in the distribution thereof "^^^ '^•
amongst its creditors, have regard to any directions that may be given by resolution
of the creditors or contributories at any general meeting, or by the committee of
inspection, and any direction so given by the creditors or contributories at any
general meeting shall in case of conflict be deemed to override any directions given
by the committee of inspection.

(2.) The liqiiidator may from time to time summon general meetings of the
creditors or contributories for the purpose of ascertaining their wishes, and it shall be



348



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



his duty to summon meetings at such times as the creditors or contributories, by-
resolution, either at the meeting appointing the liquidator or otherwise, may direct,
or whenever requested in writing to do so by one-tenth in value of the creditors or
contributories as the case may be.

(3.) The hquidator may apply to the Court in manner prescribed for directions in
relation to any particular matter arising under the winding-up.

(4.) Subject to the provisions of the Companies Acts, the liquidator shall use his
own discretion in the management of the estate and its distribution among the
creditors.

[As to the meaning of "the Companies Acts," see p. 6.]



Power to
summon.



Notices.



Certificate of
postage.



Costs.



Chairman.



Copy resolu-
tions.



Meetings summoned by Liquidator.

Er. 47—57 of 1890 are as follows :—

47. Subject to the provisions of the Companies ("Winding-up) Act, 1890, and to
the control of the Court, the hquidator may from time to time, when he thinks
expedient, summon, hold, and conduct meetings of the creditors or contributories
for the purpose of ascertaining their wishes in all matters relating to the winding-
up.

48. Meetings subsequent to the first meetings of creditors and contributories shall
be summoned by sending notices to them. The notice to each creditor shall be sent
to the address given in his proof, or if he has not proved, to the address given in
the statement of affairs of the company, or to such other address as may be known
to the person summoning the meeting. The notice to each contributory shall be
sent to the address mentioned in the company's books as the address of such con-
tributory, or to such other address as may be known to the person summoning the
meetuig.

49. The notices of general meetings to be issued to creditors and contributories
by the official receiver or liqiddator shall, where no special time is prescribed, be
sent off not less than seven days before the day appointed for the meeting.

50. A certificate by the official receiver or other officer of the Court, or by the
clerk of any such person, or an affidavit by the liquidator, or his solicitor or the
clerk of either of such persons, that the notice of any meeting has been duly posted,
shall be sufficient evidence of such notice having been duly sent to the person to
whom the same was addressed.

51. The costs of summoning a meeting of creditors at the instance of any person
other than the official receiver or liquidator shall be paid by the person at whose
instance it is summoned, who shall before the meeting is summoned deposit with
the official receiver or liquidator (as the case may be) such sum as may be required
by the official receiver or liquidator as security for the payment of such costs. The
said costs shall be repaid out of the assets of the company, if the creditors or con-
tributories, as the case may be, shall by resolution so direct.

52. Where a meeting is summoned by the official receiver he or someone nomi-
nated by him shall be chairman of the meeting. At every other meeting of creditors
or contributories (other than meetings to which the schedule of the Companies
(Winding-up) Act, 1890, applies) the chairman shall be such person as the meeting
by resolution shall appoint.

53. 'The provisions of sccl. 91 of tlic Companies Act, 1862, rchttinrf to rotes of creditors
and contributories at mceiinys sunnnoned under that section shall apply to the roting of
crrditors and contributories at meetings held under the Companies ( Winditig-tip) Act, 1890,
and thrsr rules. (Annulled by Rule 25 of April, 1892, see below.)

54. The official receiver, or, as the case may be, the liquidator, shall send in the



GENERAL MEETINGS OF CKEDITORS AND CONTRIBUTORIES. 349

High Court to tlie cliief clerk of the judge to whoiii the winding-ujj of the com-
pany is assigned, and in any other Court to the registrar, a copy, certified by him,
of every resolution of a meeting of creditors or contributories.

65. Where a meeting of creditors or contributories is summoned by notice, the Non-receipt
proceedings and resolutions at the meeting shall, unless the Court otherwise orders, °* notice,
be valid, notwithstanding that some creditors or contributories may not have received

the notice sent to them.

66. Where a meeting of creditors is adjourned, the adjourned meeting shall be Adjournment.
held at the same place as the original place of meeting, unless in the resolution for
adjournment another place is specified, or unless the Court otherwise orders.

57. In calculating a quorum at a creditors' meeting those persons only who are Quorum,
entitled to vote shall be reckoned.

Proxies.

R. 123 of 1890. — 1. A proxy shall be lodged with the ofiicial receiver or liquidator Lodging with

not later than four o'clock in the afternoon of the day before the meeting at which otncial
. . , , , receiver,

it IS to be used.

2. No person shall be appointed a general or special proxy who is a minor.

R. 124 of 1890. — Where an official receiver who holds any proxies cannot attend Deputy
the meeting for which they are given, he may in writing depute some person under otnt^ial
his official control to use the proxies on his behalf and in such manner as he may
direct.

R. 125 of 1890.— The proxy of a creditor blind or incapable of writing may be Creditors who
accepted if such creditor has attached his signature or mark thereto in the presence are blind, &c.
of a witness, who shall add to his signature his description and residence ; provided
that all insertions in the proxy are in the handwriting of the witness, and such
witness shall have certified at the foot of the proxy that all such insertions have
been made by him at the request of the creditor and in his presence before he
attached his signature or mark.



Voting at Meeting summoned by Liquidator.

R. 25 of April, 1892. — At a meeting of creditors or contributories held in the How votes
winding-up of a company under the Companies (Winding-up) Act, 1890, a resolu- count,
tion shall be deemed to be passed when at a meeting of creditors a majority in
number and value of the creditors present, personally or by proxy, and voting on
the resolution, have voted in favour of the resolution, and at a meeting of the con-
tributories when a majority in number and value of the contributories present,
personally or by proxy, and voting on the resolution, have voted in favour of the
resolution, the value of the contributories being detei-mined according to the
number of votes conferred on each contributory by the regulations of the company.

At a meeting either of creditors or contributories in a winding-up, if the last- PoU.
stated rule is valid, there must always be a poll, if there is any difi:erenco of opinion
at all, expressed by the show of hands. But the rule seems scarcely consistent with
Beet. 91 of 1862, so far as regards meetings convened by order of the Court.

Meetings called by order of the Court.

A meeting may be called to consider whether a winding-up order shall or shall
not be made. Thus, in the case of The Emma Silver Minbiff Co., a petition having
been presented, Malins, V.-C, directed a meeting of members to be convened for



350



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



Kecord book.



the purpose of ascertaining- •whether they wished the business to be continued or
for a winding-up order. And a similar meeting was directed by Vaughan Wil-
liams, J., in Thomas Hdicard Brinsmead and Sons, (1897) 1 Ch. 406.

And a meeting is sometimes called to consider in what way the company shall be
wound up. City and County Bank, 10 Ch. 470, and Form 392d, infra.

For order on application of liquidator for liberty to call meeting of creditors and
members to ascertain whether they desired vendor's lien of 10,000^. to be paid out
of the assets, and if so, liquidator to pay same ofp, but the payment not to affect
rights of secured and unsecured creditors, inter so. South Durham Iron Co.,
Hall, V.-C, 1st August, 1877. B. 1476.

As to meetings under the Joint Stock Companies Arrangement Act, 1870, see the
note to that Act, infra. Sect. IV.

Where no case for winding-up is made out the Court will not order a meeting to
be held. Joint Stock Coal Co., 8 Eq. 146 ; Langham Skating Bink, 5 C. Div. 669.

Sometimes a meeting is called to consider whether there shall be an order or
whether the petition shall stand over. Western of Canada, 17 Eq. 1.

R. 143 of 1890. — The official receiver, until a liquidator is appointed by the
Court, and thereafter the liquidator, shall keep a "record book," in which he shall
record all minutes, aU proceedings had and resolutions passed at any meeting of
creditors or contributories. . . .



Form 392d. Upon tlie petition, &c., It is ordered that , tlie secretarj' of the

^ , ] TT sd cov, do sumraon a meeting' of the contributories of the sd coy for
Order to call ■'' .., ., „, , ., ..,

meeting the pm'pose of ascertaining the wishes of the sd contributories with

before hearing reference to the sd petition, such meeting to be held at , &c., on

petition. ° • And the Ct appts , or failing him chairman of such

meeting. And orders such chairman to report the result of such meet-
ing to the Ct, And that notice of the sd meeting be sent by post by the

sd at least clear days before the day appointed for the sd

meeting, to each of the sd contributories at the addresses of such con-
tributories resply appearing in the books of the sd coy, And that the
petition do stand over until the first petition day after the sd meeting
has been held. General Phosphate Corporation, 0096 of 1893, Vaughan
AViUiams, J., 18 May, 1893.

In Thomas Edward Brinsmead and Sons (Vaughan Williams, J., Nov., 1896) no
order was drawn up, but a memorandum was signed. See Form 394b.



Form 393.



Order for
provisional
liquidator to
call meetings
as to protect-
ing iiitfTcsts
of croditors,
&c.



Upon the applicon of S., the off rear and prov liqr of the above-
named bank, by summons dated, &c., and upon hearing counsel for
the applicant and for the above-named bank, and reading the order
dated, &c. (appointing prov liqr), the alfts, &c.. It is ordered that



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