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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due from such contributory in respect of such call, but such resolution or order need
not be advertised unless for any special reason the Court so directs.

95. The payment of the amount due from each contributory on a call may be Enforcing
enforced by order of the Court to be made in Chambers on summons by the ps^jment,
liquidator.



472



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



The liquidator is not bound to put off making- a call until the claims are esta-
blished. A call may be made before any of the claims are established. Contract
Corporation, 2 Ch. 95 ; Earned' s Banking Co., 36 L. J. Ch. 215. Even under the
old practice, in making the call the judge relied on the liquidator's opinion.
Eelbert v. Banner, L. R. 5 H. L. 28.

But a call cannot be made until a list of contributories has been settled.

Instalments. Where a contract provides that payment for shares shall be made by instalments,

some of which have not become due under it when a winding-up order is made,
calls may at once be made for the amounts remaining unpaid. Cordova Union Co.,
(1891) 2 Ch. 580.

Set-off. As to setting off calls against debenture debts, see Re Taunton, iS;c. Co., (1893)

2 Ch. 175 ; against director's fees, Washington Diamond Co., (1893) 3 Ch. 95.



Form 520.

Notice to each
member of
committee of
inspection of
meeting for
sanction to
proposed call.
Form 54 of
1890.



Peoceduke where there is a Committee of Inspection.
{Title.)

Take notice that a meeting of the committee of inspection of the

ahove coy will be held at , on the \^to be a date not less than seven

days from the date lohen the notice ivill in course of post reach the person

to ivhorn it is addressed^ day of , 189 — , at o'clock in the

noon, for the purpose of considering and obtaining the sanction of

the committee to a call of 1, per share proposed to be made by the

liqr on the contributories.

Annexed hereto is a statement showing the necessity for the pro-
posed call and the amount required.

Dated this day of , 189 — .

, \_Off Recr and^ Liqr.



Statement.

1. The amount due in respect of proofs admitted against the coy,
and the estimated amount of the costs, charges, and expenses of the
winding-up, form in the aggregate the sum of /. or thereabouts.

2. The assets of the coy amount in value to the sum of 1. There

are no other assets, except the amounts due from certain of the con-
tributories to the coy, and in my opinion it will not be possible to
realize in respect of the sd amounts more than /.

3. The list of contributories has been duly settled, and persons have
been settled on the list in respect of the total number of shares.

4. For the purpose of satisfying the several debts and liabilities of
the coy, and of paying the costs, charges, and expenses of the winding-
up, I estimate that a sum of 1, will bo required in addition to the

amount of tlio coy's assets hinbofore mentd.

.5. In order to provide tlio sd sum of 1, it is necessary to make a

call on tlio contributories, and liaving regard to tlie probability that
some of them will partly or wholly fail to pay the amount of the call,



COXTKIBUTORIKS. 473

I estimate that for the purpose of realizing the amount required it is

necessary that a call of L per share should be made.

(Atmex tabular statement showing amounts of debts, costs, ^'c, and of
assets.)

In the matter of, &c. Form 521

Notice is hby given that the undersigned liqr of the above-named

coy proposes that a call should be made on all the contributories of the meuturni'e t-

sd coy [or «* the case may ie] of 1, per share, and that ho has sum- iufr of t-om-

moned a meeting of the committee of inspection of the coy to be held ™spoetio

at , on the day of , 189 — , at o'clock in the Form 5.3 of

noon, to obtain their sanction to the proposed call. ' ''''

Each contributory may attend the meeting and be heard, or make
any communication in writing to the liqr or the members of the com-
mittee of inspection to be laid before the meeting in reference to the
intended call.

A statement showing the necessity of the proposed call and the pur-
pose for which it is intended may be obtained on application to the
liqr at his office at [insert address^.

(Signed)

Dated this day of , 189 — . , Liqr.

This was substituted for the old form by Board of Trade Order of 3 let Jan. 1894.

{Title.) Form 522.
Resolved, that a call of 1, per share be made by the liqr on all z; — ;

, .,.„, P , -, Kesolution of

the contributories oi the coy \_or as the case may be \. committee of

(Signed) inspection

Members of the Committee of Inspection, call. °

Dated this day of , 189—. Form .56 of

•^ ' 1890.

A copy of the above resolution must be forthwith served upon each of the con-
tributories included in such call, together with the notice as in the next form ; but
such resolution need not be advertised unless for any special reason the Court so
directs. See R. 94 of 1890, supra.



Form 523.



{Title.)
Take notice that the Committee of Inspection in the winding-up of
this coy have sanctioned a call of 1, per share on all the contribu- ^^^^'^''^ of call

sanctioned by
tones ot the coy. committee of

The amount due from you in respect of the call is the sum of 1 iD^P^'^'t^'"!! to

be sent to



This sum should be pd by you direct to me at my office, at [state ontnlHifoiy.
address], on or before the day of , 189—. ^o''™ -57 of

Dated this day of , 189 — .

, [Off Eecr audi Liqr.

To Mr. .

This notice must be served, with a copy cf the i-e^o'ution as in the last form, on
each contributory included in the call. See R. 94, supra.



474 WINDING-UP BY THE COURT. [ClIAP. XXXIX.

Interest. As to intereBt : provisions in the articles as to interest on calls in arrear do not

apply to calls made in winding-up, Welsh Flannel Co., 20 Eq. 360 ; but interest may
be recovered under 3 & 4 Will. 4, c. 42, if notice of the intention to charge is given,
Ree Ex parte Lintott, 4 Eq. 184; Barrow\ case, 3 Ch. 184; e.g., by adding to the
notice the words ' ' In default of payment interest at the rate of 5 per cent, per
annum will be charged upon the amount unpaid."



Form 524.

Summons for
intended call.



Contents of
summons.



Procedtjee where no Committee of Inspection.
{Title.)

Formal parts: see Form 10.

Let, &c., the hearing of an applicon of the liqr of the above-named
coy, for an order that he may be at liberty to make a call to the amount

of per share on all the contributories \_or if upon any particular

class, specify the same'] of the sd coy.

This summons was taken out by A. and B., of —
of , solors for the liqr.

To the several persons resply named in the second
column of the schedule hereto, being contributories
of the sd coy proposed to be included in the sd call.

Schedule.



-, in the county



No. on List.




In what character included.



A summons is required where there is no committee of inspection. See R. 92 (5)
of 1890, supra, and compare sect. 9 (9) of 1890.

The summons must state the proposed amount of such call, and be served four
clear days at the least before the day appointed for making the call on every con-
tributory proposed 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. See R. 93 of 1890, supra.

The form of summons for call contained in Form 58 of 1890 was annulled by R. 36
of April, 1892.

For advertisement, see Form 525, infra.



Form 525.

Advert iso-
irieiit fif
iritfnrb'd cjill.
Form GO of
1890.



{Title.)

Notice is hby given that the [name of Ct] Ct has appointed

day of , 189 — , at o'clock in the noon, at [state jilace



the



of appointment'], to sanction a call on all the contributories of the sd coy
[or as the case may he], and tliat tlie liqr of the sd coy proposes that
Buch call shall be for 1, per share. All persons interested are



CONTRIBUTORIES. 475

entitled to attend at such day, hour, and place, to offer objections to
such call.

Dated this day of , 189—.

G. H., Liqr.

See R. 93, supra.

The above form is based on Form 35 of 18G2. But it is not usual to advertise
intended calls.



{Title.) Form 526.



I, , of , &c. [off recr, and] the liqr of the above-named coy, Affidavit of

make oath and say as follows : — liquidator in

Ti-iiTi 1111 1 support or

1. I have m the schedule now produced and shown to me, and proposal for
marked with the letter "A," set forth a statement showing the amount ?;^11-

due in respect of the debts proved and admitted against the sd coy, iggo.
and the estimated amount of the costs, charges and expenses of and
incidental to the winding-up the affairs thof, and which several
amounts form in the aggregate the sum of /. or thbts.

2. I have also in the sd schedule set forth a statement of the assets

in hand belonging to the sd coy, amounting to the sum of 1, and

no more. There are no other assets belonging to the sd coy, except
the amounts due from certain of the contributories of the sd coy, and,
to the best of my information and belief, it will be impossible to realize
in respect of the sd amounts more than the sum of /. or thbts.

3. persons have been settled by me on the list of contributories

of the sd coy in respect of the total number of shares.

4. For the purpose of satisfying the several debts and liabilities of
the sd coy, and of paying the costs, charges, and expenses of and

incidental to the winding-up the affairs thof, I believe the sum of

will be required in addition to the amount of the assets of the sd coy
mentd in the sd Schedule "A" and the sd sum of 1.

5. In order to provide the sd sum of 1, it is necessary to make a

call upon the several persons who have been settled on the list of con-
tributories as before mentd, and having regard to the probability that
some of such contributories will partly or wholly fail to pay the amount
of such call, I believe that for the purpose of realizing the amount

required as before-mentd, it is necessary that a call of 1, per share

should be made.

Sworn at , in the county of , this

day of , 189—.

Before me .

The above form is based on Form 33 of 1862.

Where there are disputed contributory cases standing over, it may be expedient, Cases stand-
as under the old practice, to add a further paragraph to the effect that, "even if A. ^^g' over,
and B., alleged contributories, whose cases are standing over, were settled on the
list of contributories, I believe that it would be necessary to make the said call to



476



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



the full amount hereinbefore proposed." Such a paragraph sometimes prevents
vexatious opposition.

The following is a form of schedule annexed to the affidavit in support of an
application for a call : —

Schedule of LiABrLixiES and Assets.



Liabilities.


Assets.


Amount of debts and lia-
bilities

Estimated amount of costs,
charges, and expenses of
and incidental to the wind-
ing-up of the company, in-
cluding liquidator and his
solicitor


£ s. d.


Amount in Bank of Eng-
land (Companies Liquida-
tion Account)

Leasehold premises at ,

and stock-in-trade, esti-
mated to be of a value not
exceeding

Total


£ s. d.


Total


£


£



Form 527.

Affidavit of
service of
summons
[Form 524]
for call.



Formal parts. See Form 1 1 .

1. The first six columns of the schedule now produced and shown
to me, marked A, contain a true copy of the first schedule to the cer-
tificate of the [off recr and] liqr of the above-named coy of the
sd settlement of the list of contributories of the coy, dated the

day of , and filed the day of , as I know from

having on the day of examined and compared the sd sche-
dule marked A with [an ofiice copy] of the sd list.

2. I did, on the day of , in the manner hinftr mentd, serve

a true copy of the summons now produced and shown to me, marked B,
upon each of the respective persons whose names, addresses, and de-
scriptions appear in the second, third, and fourth columns of the sd
schedule marked A., except, &c. \as in Form 503, substituting
"summons "/or "notice"].

3. I served the sd respective copies of the sd summons by putting,
&c. \_as in Form 503].

Schedule as in Form 504.

See R. 93 of 1890, supra, p. 471, which provides for service as above, or, if the
Court BO directs, for advertisement, as in Form 525.



Form 528. Upon the applicon of the [off recr and] liqr of the above-named coy,

— and up(ju reading tlio afit of the sd [off recr and] liqr, filed ,

aanctioning 189—, and the exhibit marked A therein refei-red to, and an afft of



CONTRIBUTORIES. 477
, filed , 189 — , it is ordered that leave be t^iven to the [off l*^^''" , -

' ' ' nil roun 61 of

recr and] liqr to make a call of 1, per share on all the contnbu- isoo.

tories of the sd coy [or as the case may ie]. And it is ordered that

each such contributory do, on or before the day of , 189 — ,

pay to the [off recr and] liqr of the Coy the amount which will be

due from him or her in respect of such call.

The above form is founded on Form 36 of 18G2.

For order for call on foreign and colonial shareholders who had failed to adopt a
scheme of arrangement, sec New Zealand, ^-c. Co. (00202 of 1893), Hood, Reg., 5th
Nov., 1895.

As to serving a copy of the order, see R. 94 of 1890, infra.

The clerk or other person or persons who serves the copy order and notice Record of
(Form 533) should record what is done, so that he or they may be able to make an service,
affidavit or affidavits of service in the terms of Form 536 as regards those contribu-
tories who do not pay. Where the contributories are numerous, the copies of the
order for service are usually printed, and in that case the notice (Form 533) is also
printed at the foot or back of the copy order. See as to enforcing order, Enforcing
Forms 534 et seq. Before a writ of Ji. fa. can be obtained, an order must be o^'der.
obtained for payment to the official liquidator. Leeds Banking Co., 1 Ch. 150 ; 35
L.J. Ch. 311.



Upon the applicon of S., the off recr and liqr of the above-named Form 528a.
coy, by summons dated, &c., and upon hearing the applicant in person Another,
and the solors for B. and D., the respts to the sd summons, and read-
ing the order to wind up the sd coy dated, &c., the certificate of the
applicant of the settlement of the list of contributories of the sd coy
dated, &c., and the afft of the applicant filed, &c., It is ordered that
leave be given to the sd off recr and liqr to make a call of bl. per share
on the sd B. and D. resply contributories of the sd coy. And it is

ordered that each such contributory do on or before the of ,

1895, pay to the sd off recr and liqr the amount which will be due
from him in respect of the sd call. Buckfastleiyh Gas Co. (0027 of
1894), Hood, Eeg., 2l8t March, 1895.



Upon the applicon of the off liqr of the above-named coy, and upon Form 529.
hearing, &c., it is ordered that a call of 6/. per share be made on all
the contributories of the sd coy named in the schedule to [the sd chief
clerk's certificate, dated, &c.], except such of them as have fully paid
up their shares, and excepting also H., without prejudice to such right
in respect of his shares in the coy as the off liqr can establish in the
bankruptcy of the sd H., but as to such of the contributories as have
made payments on account of such call the off" liqr is to give them
credit for the amount so pd. And it is ordered that each such contri-
butory do, on or before the 23rd day of March, 1886, pay, &c. General
Share Trust Co., Kay, J., 2nd March, 1886.



Another.



478



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



Form 530.

Call to fuU
amount.



Upon the applicon of the [off] liqr, &c., Order that a call to the
extent of the full amount remaining unpaid be made on all the con-
tributories of the sd coy whose names are set out in the schedule to the
sd chief clerk's certificate in respect of the shares held by them in the
sd coy. And \order for payment into hanli\. Sovereign Co., 15th July,
1877. B. 1849. Countesthorpe Co., Chitty, J., 13th March, 1883.
A. 410.

Order for call on all contributories " except those numbered , whose shares are

fully paid up." Carta Fara Co., Pearson, J., 22nd March, 1886. A. 443.



Form 531.

Order for call
payable by

instalments.



Upon the applicon of the off licp, &c., Order that a call of Al. per
share be made on the contributories of the coy, other than the con-
tributories \_com2)romised~\ whose names, and the number of whose
shares, are set forth in the schedule to the off liqr's a£ft, filed, &c.
And order that such call be pd in two instalments of 21. per share at
the following times, that is to say, the first instalment of 21. per share
on "Wednesday, 7th April, 1880, and the second instalment of 21. per
share on 24th Jul}^ 1880. And it is ordered that in the event of any
of the sd contributories not paying the sd instalment of calls on
7th April, 1880, then that the full call of 4/. per share be pd by the sd
contributories making such default on or before 14th April, 1880.
And order that two such instalments as af sd be j^d resply on or before the
days before named by each such contributory to the account of the off
liqr at the Bristol branch of the Bank of England. And order that
the costs of applicants of applicon be costs in winding-up. West of
Engkmd Bank, Pry, J., 11th March, 1880. B. 473.



Form 532.

Order on

personal re-
presentative
for payment
of call.



Upon applicon of liqr, «S:c., Order that leave be given to the applicant
to make a call of 21. \Qs. per share on Mrs. L. C. H., of Sec, the legal
personal representative of F. H., deed, late of, &c., a contributory of
the sd coy, and it is ordered that the sd L. C. H. do, on or before the
29th June, 1892, pay to the liqr of the Gem Glass Coy, Limtd, the
amount which will be due from her in respect of such call out of the
assets of the sd F. 11., deed, in her hands as such legal personal repre-
sentative as afsd, to be administered in a due course of administration
if the sd L. C. IT. has in her hands so mucli to be administered. Gem
Glass Co., 81 of 1891, Eeg., 15th June, 1892.



Form 533.

Notice to be
Bcrvcd with



In the matter, &c.

The amount due from you [tumie'j in respect of the call made pur-
suant to leave given by the above \_or within] order is the sum of



CONTRIBUTORIES. 479

1., which sum is to be pd by you to me, as the liqr of the sd coy, the order

at my office, No. — , Street, iu the county of . ^j^U

Dated this day of , 189—. Form C2 of

To Mr. . A. B., [Ofliecr cmd^ Liqr. ^^^^■

The liquidator should actually make the call before giving this notice ; the official
receiver does so.

Enforcing Payment of Call.

Formal parts. See Form 10. Form 534.

On the part of , of , the [off recr and] liqr of the above- guminons to

named coy, that the several persons named in the second column of enforce pay-
the schedule to this summons, being resply contributories of the above- ™ " ^^ ^'

named coy, may be ordered, on or before the day of , or

within four days after the service of the order to be made hereon, to

pay to the sd [off recr and] liqr, at his office at , the several sums

set opposite their respective names in the sixth column of the sd sche-
dule hereto, such sums being the amounts due from the sd several per-
sons resply in respect of the call of 1, per share, made by the

applicant [«/" interest claimed, add ivords accordinffli/, see note to
Form 740, in/ra^ ; and that the costs of the applicant of and incident
to this applicon may be costs in winding-up [o?* that the sd several
persons may be ordered to pay to the applicant the costs of and
incident to this applicon].

The above summons is based on the foi-m used under the old practice, and is
drawn to accord with the order under the new practice. See Form 537, infra.

The summons will be addressed : ' ' To the several persons respectively named in
the second column of the schedule to this summons, being contributories of the said
company;" and a schedule will be added, as in Form 527, preserving the same
Berial numbers as in Form 601.



{Title.) Form 635.



I, , of , &c. [A. B. C, of 33, Carey Street, Lincoln's Inn, Affidavit in

off recr and], the liqr of the above-named coy, make oath and say as support of
-" ^ *^' -^ application

follows : — for order for

1. On the day of I duly made a call of [II.'] per share payment of

upon the contributories of the sd coy [holding ordinary shares], and contribu-
such call was made with the sanction of a resolution passed by a tories.
majority of the members of the committee of inspection present at a isgo
meeting of such committee duly convened, and held in accordance modified,
with E,ule 92 of the Cos Winding-up Rules, 1890, and as appears

by the afft herein of , a copy of the sd resolution and notice of

the sd call specifying the amount due from each contributory in
respect thof were duly served on each of the contributories included
in such call.



-iSO WINDING-UP BY THE COURT. [CilAP. XXXIX.

2. None of the contributories of the sd coy, whose names are set
forth in the schedule hereunto annexed, marked A., have pd or caused to
be pd the respve sums set opposite their respve names in the sd schedule,
which sums are the respve amounts now due from them resply in respect
of the sd call of per share,

3. The [respve] amounts or sums set opposite the names of such con-
tributories resply in such schedule are the true amounts due and owing
by such contributories resply in respect of the sd call.

Sworn at , in the county of

this day of , 189—.

Before me .



A. B. C.



The Schedule above referred to.



No. on
List.


Name.


Address.


Description.


In wliat Character
included.


Amount due.












£


s.


d.



Note. — In addition to the above afltt, an afft of the service of the
applicon for the call will be required.
The above form is founded on Form 38 of 1862.



Form 536.

Affidavit of
Horvice of
^'cneral order
for call and
notice.



1. The document now produced and shown to me, marked with the
letter A., is [an office copy of] the certificate of the [off recr and] liqr of
the above-named coy of final settlement of the list of contributories of
the above-named coy, dated, &c., and filed, &c. [^so/ar as the sd list has
been settled up to the date of the sd ce7'tijicate~\.

By referring to the certificate, as above, the expense of preparing a separate
schedule of the parties served is saved, but in some cases a schedule is prepared, as
in Form 604, and in such cases the affidavit will state that the first six columns
contain a true copy of the first and second parts of the first schedule to the certifi-
cate, iSrc, as in Form 503.



2. I did, on the day of , in the manner hinftr mentd, serve

a true copy of the resolution of the day of , of the committee

of inPi)ection ponding a call of [ /.] per share on the contributories

of the sd coy, a call now produced and sliown to mo, marked ]^, and also
a true copy of the notice to pay to the [off recr and] licp-, now produced
and shown to rac, marked C, ujion each of the persons whose names,



CONTEIBUTORIES. 481

addresses, and descriptions arc sot forth in tlio second, third, and fourth
columns of the first and second parts of the first schedule to the sd
[office copy] certificate.

3. I served the sd respve copies of the sd order and notice by putting
such copies (with the blanks in such copy notices duly filled up) into
envelopes, duly addressed to such persons resply, according to their
respve names and addresses appearing in the sd office copy certificate,
and in the sd schedule marked C. resply, and with the proper postage
stamps affixed thereto as prepaid letters, into the post-office receiving

house. No. — , Street, in the county [o/- city] of , between the

hours of and of the clock in the noon of the sd day

of .

It should also be stated that such addresses are the addresses last known to the
liquidator, and if any of them are sent to addresses other than those mentioned in
the certificate, that fact should be verified.

There appears to be no rule under the new practice analogous to E. G3 of 1862,
which provided for service on the solicitors of the contributories being sufScient.



The day of , 189—.

{Title.) Form 537.

Upon the applicon [by summons dated, &c.] of [B.] the [off recr and] Order for



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