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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In the matter of the Coy, Limtd.

The Second Schedule above referred to.
[Here folloiv seven columns, headed as above, except that column 5 is
headed "In what character proposed to be included," and column 7 is
headed " Date when excluded from the list."]

Dated this day of , 189—.

(Signed) , Liqr.

lu tlie above form each contributory should have the serial number originally Serial
assigned to him in Form 498, and the names in each division shoiild be in alpha- number,
betical order according to surnames. Under the old practice it was usual to add a
further paragraph -where necessary, stating that " the several persons -whose names
are set forth in the third schedule hereto are alleged to be contributories, but these Cases left
cases have not yet been adjiidicated on ;" so that -when a call -was made it might open,
be seen that the disputes, even if settled in favour of the liquidator, -would not
reduce the call.



In the matter of the Companies Acts, 1862 to 1890, Form 502.
and ■

-r ,-, ,, r- Notice to

In the matter of . contributory

Take notice that I, [A. B. C, off recr], the liqr of the above- °^eut^Vhst^'

named coy, have, by certificate dated the day of , 189 — , under of contribu-



464



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



tories, and
that his name
is included.
Form 48 of

1890.



my hand, finally settled the list of contributories of the sd coy, and
that you are included in such list in the character and for the number
of shares [or extent of interest] stated below.

Any appKcon by you to vary the sd list of contributories, or that
your name may be excluded therefrom, must be made by you to the
Ct [by summons] within twenty-one days from the service on you of
this notice, or the same will not be entertained.

The sd list may be inspected by you at my office at [^stale address^,
on any day between the hours of ten and two o'clock.

Dated this day of , 189 — .

A. B. C, [Of recr cmd^ llqr.
To Mr. [or to Mr. , his solor].



No. in
List.



Name.



Address.



Description.



In what
character
included.



Number of Shares

{or extent of

Interest) .



Having regard to Rule 86, infra, the words "by summons" should be inserted
in the above form.

See Rules 86, 87, and 88 of 1890, supra.



Form 503.

Affidavit of
service of
notice to
contributory.
Porm 50 of
1890.



{Title.)

I, , of [No. 33, Carey Street, Lincoln's Inn, London, W.C],

clerk to [the off recr and liqr of the above-named coy], make oath and
say as follows : —

1 . The first six columns of the schedule now produced and shown to
me and marked with the letter "A," contain a true copy of the list of
contributories of the sd coy, made out by the [off recr and] liqr of the

coy on the day of , 189 — , and now on the file of proceedings

of the sd coy, as I know from having, on the day of , 189 — ,

examined and compared the sd schedule with the sd hst.

2. I did on the day of , 189 — , in the manner huftr mentd,

serve a true copy of the notice now produced and shown to me and
marked "B," upon each of the resp persons whoso names, addresses,
and descriptions appear in the second, third, and fourth columns of the
sd schedule marked "A," except that in the tabular form at the foot of
such copies resply I inserted the number on list, name, address, descrip-
tion, in what character included, and number of shares [or extent of
interest] of the person on whom such copy of the sd notice was served,
in the same words and figures as the same particulars are set forth in
the sd schedule marked "A."



CONTRIBUTORIES.



465



3. I served the sd rasp copies of the sd notice Ly putting such copies
resply [into e?ivelopes^, duly addressed to such persons rcspl}', according
to their resp names and addresses appearing in the sd scliedule marked
"A," [by placing the same in the official letter bag provided by the Post-
master-General, for the office of the Off Eeer under the Cos (Winding-
up) Act, before the hour of o'clock in the noon of the sd

day of , 189—], and with the proper postage stamps affixed thereto,

as prepaid letters into the post office receiving-house. No. , in



Street, in the county of
the clock in the -
Sworn, &c.



-, between the hours of
noon of the sd day of



and

189—.



of



The above form, as originally drawn, is Form 50 of 1890, for use by an outside
liquidator, and, as varied by the matter in square brackets, is sometimes used when
the ofEicial receiver is liquidator, and the Schedule below is used. But in practice
the Schedule may be dispensed with by leaving- out clause 1, and altering the
words of clause 2, so as to run: — 1. "I did, &c., a true copy of the notice, &c.
marked 'A.' upon, &c. columns of the First Schedule to the List of Contributories
of the sd Coy, made out by the off recr and liqr of the coy on, &c., and now on
the file of proceedings of the sd coy, except, &c." [<o the end, leaving out the last
words " marked 'A.' "] The words "marked ' A.' " must also be left out of the
last clause.



This Schedule marked "A" was produced and shown to



and



Form 504.

The schedule



is the same schedule as is referred to in his afft sworn before me this referred to in

to lo/^ /r»-7\ l^ist form.
day of ,189—. {bujned) . Form 61 of

1890.



Kumber
on List.



2.

Name.



3.

Address.



Description.



In wliat
character
included.



Number of Shares

[or extent of

Interest) .



{Title.)



Form 505.



The following is a list of persons who, since making out the list of Supplemental

contributories herein, dated the day of , 189 — , I have ascer- ^^^^ "f '^^.^'

•^ . tributones.

tained are, or have been, holders of shares in [or members of J the Form 49 of

above-named coy, and to the best of my judgment are contributories of 1^^^-

the sd coy : —

1. The sd supplemental list contains the names of such persons,
together with their resp addresses and the number of shares [or extent
of interest] to be attributed to each.

p. H H



466



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



2. In the first part of tlie sd list such, of the sd persons as are con-
trihutories in their own right are distinguished.

3. In the second part of the sd list such of the sd persons as are con-
trihutories as being representatives of, or being liable to the debts of
others, are distinguished.

Dated the day of , 189—.

{^Offrecr ancl] liqr.

\The supplemental list is to be made out in the same form as original list?\^

The a-bove ia Form 49 of 1890, as varied -when the official receiver acts as liqui-
dator. In Form 49, the clause beginning "The following " is numbered 1, and the
following clauses are numbered 2, 3, 4.



Form 506.

Summons to
rectify list.



Let, &c. [see Form 10], on the hearing of an applicon on the part of
A. B., of , for an order that the list of contributories of the above-
named coy, and the liqr's certificate finally settKng the same, may be
varied by excluding the name of the applicant therefrom, and that the
liqr may be ordered to pay to the applicant the costs of this applicon.



Form 507.

Affidavit on
application'
to rectify list.



I, &c., make oath and say as follows : —

1 . On the day of I received from the liqr of the above-
named coy a notice that he had included me in the list of contributories
of the above-named coy. The sd notice is now exhibited to me
marked .

2. In response to the sd notice I wrote and sent to the sd liqr a
letter informing him of the fact that I was not a shareholder in the
sd coy, and that I had never agreed to take any shares therein or
authorized the placing of my name on the register of members, and that
I protested against my name being included in the list of contribu-
tories. A copy of my sd letter is now exhibited to me marked .

3. On the of I received from the sd liqr the notice ex-
hibited to me marked , from which it aj^pears that the sd liqr has

in fact included me in the sd list as a present member in respect of
shares.

4. I am not, and never have been, a member of the sd coy. I never
applied for or authorized any other person to apply on my behalf for
shares in the sd coy, and I never received any notice of allotment of
shares, and I was not aware until I received the notice referred to in
the first paragraph of this afft that tliere was any suggestion that I
was a moml)or of tlio sd coy.

5. I understand that it is alleged that B., of , applied for the

sd shares in my name and on my behalf, but I say that if this be

so, the applicon was made without my knowledge or authoi'ity, and
that I have never adopted or ratified the act.



Tlio above form is only an example,
the facts of each case.



The contents of the affidavit will vary with



CONTEIBUTORIES, 467

{Title.) Form 508.

Upon the applicon of W. N. to review or vary the list of contribu- Order on
torios of tlio sd coy in respect of the inclusion of the sd W. N. therein, application to
and that his name may be excluded therefrom [or as the case may he'], coutribu-
and upon hearing, &c., and upon reading, &c., It is ordered that the tnries.
name of the sd W. N. be excluded from the sd list of contributories, ^^o^

or may be included in the sd list of contributories for shares [or

as the case may 5e] [or the Ct doth not think fit to make any order on
the sd applicon, except that the sd W. N. do pay to the liqr of the sd

coy his costs of this applicon, to be taxed by in case the parties

differ].

This is practically identical with the Form (32 of 1862) of order on an application
to vary the list.

The costs of a person unsuccessfully disputing his liability as a contributory Costs,
must, as a rule, be paid by the contributory. Gower^s Case, G Eq. 77 ; Andrew^!
Case, 3 Ch. 161.

If the alleged contributory successfully disputes his liability, he -will get his costs.
Ifation^s Case, 3 Eq. 77, and Forms 509 and 510, i?ifra. As to the form of order
and priority, if costs are given him, Salisbury -Jones^ Case (2), (1895) 1 Ch. 333 ;
London Metallurgical Co., (1895) 1 Ch. 758; Home Investment Co., 14 C. D. 167;
Dominion of Canada Co., 27 C. Div. 33 ; Re North Buckley Co., 24 S. J. 835.

For order varying supplemental list, see Syria Ottoman Rail. Co. (00186 of 1894),
Hood, Reg., 19th Nov., 1895.



Upon the applicon of S., &c., Order that the name of the sd S. be Form 509.
struck off the list of contributories of the sd coy ; And order that E., q^^^^ ^^
the off liqr, pay to the sd S. his costs of this applicon to be taxed ; And strike off.
order that the off liqr be allowed the amount so pd out of the assets of
the coy. Laml Loan, Sfc. Co., Kay, J., 5th April, 1886. B. 447.

Very commonly the order in such cases directs the liquidator to pay the costs out
of the assets of the company, and to be allowed the same. See Self- Acting Seiving
Machine Co., Pearson, J., 6th April, 1886. B. 454 ; Marseilles Rail. Co., 30 Ch. D.
598; Ex parte Bentley, 12 Ch. D. 857; Salishury- Jones' Case [2), supra.



Upon the applicon of Mrs. E. L., of, &c., married woman, by sum- Form 510.



mons, dated the 20th May, 1892, and upon hearing the solors for the Order vary-
applicant, and C. J. S., the off recr and liqr of the above-named coy, ^S official
appearing in person, and upon reading the certificate of the [assistant] certificate
off recr [acting for the sd off recr and liqr], dated the 5th day of May, settUng Hst
1892, It is ordered that the sd [assistant] off recr's certificate be varied tories.
by excluding the name of the applicant from the first part of the first
schedule to such certificate. And it is ordered that the sd C. J. S.,
as such off recr and liqr, do out of the assets of the sd coy pay to the
applicant the sum of 21. 2s. for the ascertained amount of her costs of

H h2



468



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



this applicon. Groombridge and Sons (1891, G. 44), Chitty, J., 24th
May, 1892. A. 832. And see Washington Diamond Co. (1891, W.
0309), V. Williams, J., 19 May, 1893.

Form 511. Upon the applicon of D., &c., and upon hearing, &c.. It is ordered

r~j that [name be excluded]. And it is ordered that the [off] liqr do pay

ing certificate to the sd D. 16/. lOs. Id., the ascertained costs of the sd D. of this

namr^"'^''" applicon. Bryn-y-Fferan Co., Bacon, V.-C, 10th April, 1883. A. 612.

Under the old practice tlie certificate of the cliief clerk was not physically altered.
Fox V. BearblocJc, 30 W. R. 342.



Form 512. Upon the applicon of the [off] liqr of coy to settle the list of con-

~. ~, ', tributories made out by him and left at the chambers of the Master of
Another order •'



to strike name the Eolls, wherein the name of E., of



has been included as a



off list.



member holding twenty-four shares, to fix the name of the sd E. upon
such list, and upon reading, &c., Order that the name of the sd E. be
struck off the list of contributories for unpaid shares. And order that
the sd [off] liqr do pay to the sd E. the sum of 14/. 10s. 6f/., being the
ascertained amount of his costs of this applicon. Southsea Floral Hall
Co., M. E., 25th June, 1877. B. 1453.



Form 513.

Order to place
name in list
for paid-up
shares only.



Upon the applicon of T. to review [or vary] the list of contributories
of coy in respect of the inclusion of the sd T. therein as an unpd share-
holder, and that his name might be struck out or entered as a fully
paid-up shareholder, and upon hearing the solors for the applicant and
for the [off] liqr, &c. \_adjournment into Court\ Order that the name of
the applicant be placed in the sd list for 150 paid-up shares only. And
order that the costs of the applicant and the sd [off] licj^r be taxed, &c.,
and pd out of assets of coy. Eupion Fuel and Gas Co., Malins, V.-C,
17th March, 1877. A. 597.

The list itself does not now state whether shares fully paid or not, see Form 501.



Form 514.

Order declar-
ing that
slifires fully
paid.



The applicon, &c., the Ct doth declare that the shares of /.

in the above-named coy, numbered from to , both inclusive,

standing in the name of the applicant P., were at the date of the order
to wind up the above-named coy fully paid up and are to be deemed
in favour of the applicant so to be, and that the sd applicant is under
no liability in respect thof. And it is ordered that the sd AV., as such
off recT and liqr, do pay out of the assets of the above-named coy to
the sd P. his costs of the sd applicon, such costs to be taxed. Building
Estates Brickfields Co. (002 of 1894). Vaughan Williams, J., 8th Nov.,
1895; Farhnry's case, (1896) 1 Ch. 100.



CONTRIBUTORIES.



460



On tlie appllcon of the off liqr to settle the list of contributor ies so Form 515.
far as regards the Q. Coy (placed on the list as a contributory in Order against
respect of 10,000 shares), and upon hearing, &c., this Ct being of objection of
opinion that the sd Gr. Coy is properly placed on the list of contribu- l^,^}^'^^ /j^
tories of the sd Indian Coy in respect of 10,000 shares, Doth order liquidation)
that it be referred to the Taxing Master to tax the costs of the appli- ^"^ contribu-^*^
cant of the sd applicon in Chambers so far as relates to the sd G. Coy, tory.
and occasioned by the adjournment thof into Ct. And the off liqr of
the sd Indian Coy is to carry in a claim for payment of his sd costs
in the winding-up of the G. Coy, Limtd, but so far as such costs shall
be recovered by him as afsd such costs are to be his costs in the
winding-up of the sd Indian Coy. Indian, Sfc. Gold Mining Co.,
Chitty, J., 26 Jan., 1886.



Upon the applicon of the [off] liqr, &c., Order that the sd W. S. Form 516.
and S. be and they are hby settled upon the list of contributories of Order to settle
the sd society as the exors of the sd S., deed, in respect of fifty shares executors on
held by him in the sd society. Crown Co-operative Society, M. R.,
20th Jan., 1877. A. 437.



Upon the applicon of off recr and liqr by summons, &c., It is ordered Form 517.

that the register of shareholders of the Coy be rectified by adding Order re<tify-

thereto the name of K. as the holder of 100 shares of the above-named in g- register

coy, numbered to , both inclusive, in the place of the name of jj^meTn plfce

S., whose name has by the sd order dated, &c., been removed from the of contribu-
list of contributories of the above-named coy. House and Land Invest- qq\^^^
ment Trust, 00117 of 1892. Eeg. 21st Nov. 1893.



Upon motion by way of appeal this day made unto this Ct by A. Form 518.
in person, and upon hearing counsel for the liqr of coy, and upon Order -



on



reading the order dated 15th July, 1876, Order that the sd order, appeal
whereby it was ordered that the name of the sd A. should be placed ^^^'^'^''^^^
upon the list of contributories of the sd coy in respect of 3,520 shares
therein, upon which nothing has been pd, be discharged. And
declare that the sd A. held and holds the sd shares as fully pd-up.
And order (he so desiring) that his name be not placed on the list of
contributories of the sd coy in respect of the sd shares or any of them.
Aiid order that the liqr of sd coy do pay to the sd A. his costs of and
occasioned by the sd order, including his costs of this applicon, such
costs to be taxed by the Taxing Master. Wedgwood Coal, ^'c. Co.,
Andcrsoii's case. Court of Appeal, 14th Nov., 1877. B. 2021. See also
report in 7 Ch. Div. 75.



470



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



Form 519.

Order that
contributories
may inspect
books, &c.,
of Company.



Past members.



Court's leave.



Evidence.



Compromise.



Upon the applicon of T., &c., contribtitories of the above-named
coy, and upon hearing, &c., and upon reading, &c., the judge doth
order that the applicants, their accountants, agents, and solors be
at liberty at all reasonable times upon giving three days' notice to
inspect and peruse at the office of N., the sd off licp of the above-
named coy, situate at , in the City of London, and at the offices of

the coy, situate at , and at the respective branch offices of the sd

coy all books and papers of the coy at such offices in the possession,
custody, or power of the sd N., as off liqr of the coy, and be at liberty
to take abstracts thof or extracts therefrom as they may be advised at
their expense. Irioell India Ruhher Works, Bacon, V.-C, 16th May,
1885.

Settlmg the B. List.

The B. List comprises the past members, viz., those who ceased to be members
within one year from the commencement of the winding-up. See sects. 38 and 74
of 1862, and observations, supra.

Sect. 38 (3) of 1862 provides that no past member shall be liable to contribute to
the assets of the company unless it appears to the Court that the existing members
are unable to satisfy the contributions required to be made by them in pursuance
of this Act.

And as the Act of 1890 does not substitute liquidator for the Court, it appears
that an application to the Court is necessary before the B. List can be settled.

According to the old practice, the Court, before proceeding to settle the B. List,
required some evidence that there was an improbability of the requisite assets being
otherwise obtained within a reasonable time {Eelbert v. Banner, L. R. 5 H. L. 28),
and this practice will no doubt be followed.

As to the mode of estimating the debts for which past members are liable, see
Morris's case, 7 Ch. 200 ; 8 Ch. 800.

As to application of what is recovered from the past members, see Webb v.
Whiffin, L. R. 5H. L. 711.

If the past members buy up the debts in respect of which they are liable to
contribute, they may escape. Brett's case, 6 Ch. 807 ; 8 Ch. 800.

A compromise with an A. contributory does not discharge the B. contributory
beyond the amount received. Helbert v. Banner, L. R. 5 H. L. 28.



Court may
make and
order pay-
ment of calls.



Calls on Contributories.

As soon as may bo after the winding-up order, the Court is to " cause the assets
of the company to be collected." See sect. 98 of 1862, supra.

Sect. 102 of 1862. — The Court may, at any time after making an order for
windiiig-\ip a company, and either before or after it has ascertained the sufBcicncy
of the asHots of the company, make calls on and order payment thereof by all or any
of the contri])utorics for the time being settled on the list of contributories, to the
extent of their liability, for payment of all or any sums it deems necessary to satisfy
the debts and liabilities of the company, and tho costs, charges, and expenses of
winding it uji, and for tho adjustincnt of tho rights of tho contributories amongst
thf-msclvos, and it may, in making a call, take into consideration tho probability
that Homo of tho contributories upon whom the same is made may partly or wholly
fail to pay their respective portions of tho same.



CONTRIBUTORIES. 471

Sect. 13 of 1890. — General rules may be made for requiring or enabling all or General rules,
any of tlie powers and duties conferred and imposed on the Court by sect. 102
of the Companies Act, 18G2, to be exercised or performed by the liquidator as an
officer of the Court, and subject to the control of the Court. Provided that the Sanction
liquidator . . . shall not make any call without either the special leave of the reqiured.
Court or the sanction of the committee of inspection.
Rr. 92—95 of 1890 are as follows :—

92. The powers and duties of the Court in relation to making calls upon con- Liquidator's
tributories conferred by sect. 102 of the Companies Act, 1862, shall and may be powers,
exercised by the liquidator as an officer of the Court, subject to the provisions of
sect. 13 of the Companies (Winding-up) Act, 1890, and to the following regulations : —

(1.) Where the liquidator desires to make any call on the contributories, or any Committee
of them, for any purpose aiithorized by the Acts, if there is a committee summoned,
of inspection he may smnmon a meeting of such committee for the purpose
of obtaining their sanction to the intended call.
(2.) The notice of the meeting shall be sent to each member of the committee of Notice of
inspection in sufficient time to reach him not less than seven days before ^^^'

the day appointed for holding the meeting, and shall contain a statement
of the proposed amount of the call, and the purpose for which it is
intended. Notice of the intended call and the intended meeting of the Advertise-
committee of inspection shall also be advertised once at least in a London ^^'^''*
newspaper, and where the winding-up is not in the High Court also in a
newspaper circulating in the district of the Court in which the vnnding-up
is being conducted. The advertisement shall state the time and place of
the intended meeting of the committee of inspection, and that each con-
tributory may either attend the said meeting and be heard, or make any
commimication in writing to the liquidator or members of the committee
of inspection to be laid before the meeting, in reference to the said intended
call.
(3.) At the meeting of the committee of inspection any statements or repre- Statements to
sentations made either to the meeting personally or addressed in writing to ® consiaerea.
the liquidator or members of the committee by any contributory shall be
considered before the intended call is sanctioned.
(4.) The sanction of the committee shall be given by resolution which shall be Resolution.

passed by a majority of the members present.
(5.) Where there is no committee of inspection the liquidator shall not make a Coiirt's leave
call without obtaining the leave of the Court. where no

93. Every application to the Court for leave to make any call on the con- committee,
tributories, or any of them, for any purpose authorized by the Acts, shall be made Summons^
by summons stating the proposed amount of such call, and such summons shall be -i

served four clear days at the least before the day appointed for making the call on
every contributory pi-oj^osed to be included in such call ; or, if the Court so directs,
notice of such intended call may be given by advertisement, without a separate
notice to each contributory.

94. When, in pursuance of a resolution of the committee of inspection or an Copy resolu-
order of the Court, a call has been made by the liquidator, a copy of the resolution tion or order
or order shall be forthwith served upon each of the contributories included in such ^ notice,
call, together with a notice from the liquidator specifying the amount or balance



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 63 of 134)