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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to the winding-up of the affairs of the sd coy, and I believe that the
sum of 250/. at the least will be required to pay the sd costs, charges,
and expenses.

6. In order to provide for the costs, charges, and expenses of the
winding-up and for the amount due to creditors, it is necessary to
require payment of the whole amount due from the sd several persons
who are found to be contributories of the sd association by my certifi-
cate, settled on the 15th June, 1892, and that a balance order should
be made against all such persons for the amounts remaining due from
them as afsd.



Form 553.

Order to pay-
calls made
before wind-
ing-up.



Upon the applicon of S., the [off recr and] liqr, &c., Order that the
several persons named in the second column of the schedule hereto,
being resply contributories of the sd coy, do, within seven days after
service of this order upon them, pay to the sd S., the [off recr and]

liqr of the sd coy, at his office, No. — , , in the city of London,

the several sums of money set opposite to their respective names in
the tenth [or, in case of a call, only the sixth] column of the sd schedule,
such sums being the amounts due from the sd several jDersons resply in
respect of [application money, allotment money, and] calls on the
shares in the sd coy held by them resply before the commencement of
the winding-up of the sd coy. And it is ordered that the sd several
persons do also pay to the sd S., the [off recr and] liqr, at the same
time and place [interest at the rate of 5/. p.c. p. a. on the respective

amounts specified in the sd column of the sd schedule from the

time when each of such calls became due as mentd in the sixth column
of the sd schedule until payment], and that the sd several persons do
also pay to the sd S. at the same time and place the costs of this applicon
mentd in the eleventh column of the sd schedule.

The ScnEDTTLE above referred to.

[ This will contain the numher of columns at the foot of the summons,
with an additional column {seven or eleven, as the case may be) headed,
" Amount due for costs.^''] Commercial Clothing Co., Malins, V.-C,
3rd Doc. 1877. A. 2123 ; yidvertising a7id Addressinr/ Co., 94 of 1891,
25th Oct. 1892.

As to enforcing orders, see infra, Forma 5GC ci seq. The payment to the liqui-



CONTRIBUTORIES. 491

dator will be enforced by fi. fa., &c. For affidavit of personal service, sec Form

Upon the applicon of D,, the [off] liqr of the above-named coj^, by Form 554.



summons, dated, &c., and upon hearing the solors for the applicant, and Another puoh
for C, K., and P., rosply contributories of the sd coy, and upon hearing p^dcr with
Y. in person, also a contributory of the sd coy, and no person appear-
ing for or on behalf of any of the other contributories of the sd coy
named in the schedule to the sd summons, dated, &c., although duly
summoned, as appears by the ailts of G-., filed the, &c., and the exhibits
therein referred to, and upon reading the two several orders, dated, &c.,
the chief clerk's certificate of the settlement of the list of contributories,
dated, &c., the afft of the sd D., filed, &c., and the exhibit thei-ein
referred to, and the afft, &c.. It is ordered that the several persons
named in the second column of the schedide hereto, being resply contribu-
tories of the above-named coy, do on or before the 15th day of Aug.
1891, or subsequently within seven days after the service of this order,

pay to the sd D., as such [off] liqr, at his offices No. — , Street, in

the City of London, the several sums set opposite their respve names in
the sixth column of the sd schedule hereto, such sums being the capital
amounts due fi'om the several persons resply in respect of the several
calls on the shares in the sd coy held by them and made by the
directors of the sd coy previous to the date of the order for winding-up
of the same on the following dates, namely, &c., and payable on the
following dates resply, that is to say, 22nd Oct. 1879, &c., and that the
sd several persons do also pay, at the time or times and in manner afsd,
the several sums set opposite their respve names in the eighth column
of the schedule hereto, being interest calculated at the rate of 10^. p. c.
p. a. on the sd several calls from the respve dates when each of such calls
became payable down to the 15th Aug. 1891, together with further
interest on such capital amounts at the same rate to be calculated from
the last-mentd date until payment, and together also with the amounts
(if any) set opposite their respve names in the ninth column of the sd
schedule for costs ordered to be pd by them resply on proceedings
taken by the coy for the recovery of the sd calls and for costs of this
applicon. And it is ordered that each of the sd several persons do pay to
the sd D. the sum of 13s. Ad. on account of his costs of and incident to
the sd several applicons. New Zealand Agi-icuUiiral Co., Chitty, J.,
1st Aug. 1891. B. 1042.



Order to pay the several sums set opposite the respive names in the Form 555.



fourth column of the sd schedule hereto, such sums being the amount Order to pay
due from the sd several persons in respect of calls and allotments made arrears with
in respect of the shares held by the sd several persons, together with costs.



492



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



the several sums of interest due on sucli calls and allotments resply,
between the 5th Dec. 1883, set forth in the fifth column of the sd
schedule, amounting together to the sums set opposite to the respive
names in the sixth column of the sd schedule, together with further
interest at the rate of 5 p.c. p. a. on the sd several sums set forth in the
fourth column to the date of payment. And it is ordered that each of
the sd persons named in the schedule hereto do pay to the sd "W., as
such off liqr, the sum of IO5. for costs of and relating to this order.
Marine Piers Co., Chitty, J., 17th Dec. 1883. B. 1691.



Form 556.

Order for
payment of
allotment
moneys and
instalinents
and interest.



Schedule.



Upon the applicon of, &c., Order that the several persons named in
the second column of the schedule hereto, being resply contributories
of the sd coy named in the sd [chief clerk's] certificate, do, on or before
the 6th day of March, 1884, or subsequently within seven days after
service of this order upon them, pay, &c., the several sums of money
set opposite to their respive names in the thirteenth column of the sd
schedule, such sums being the total amount due from them in respect
of the sums due on applicon, allotment, and in respect of the instalments
due according to the terms of the prospectus of the sd coy on the dates
mentioned in the sixth, eighth, tenth, and twelfth columns of the sd
schedule hereto, in respect of the shares in the sd coy resply held by
them. And order that the sd several persons do also, within the like
period, pay to the sd C, as such [off] liqr as afsd, at, &c., interest at
the rate of 10/. p.c. p. a., for and in respect of the amounts resply mentd
in the fifth, seventh, ninth, and eleventh columns of the sd schedule
hereto, from the respive times when each of the sd sums, payable on
applicon, allotment, and in respect of instalments, became due, as
mentd in the sd sixth, eighth, tenth, and twelfth columns of the sd
schedule hereto, resply until payment. Great Southern Mysore Gold
Minimj Co., Limtcl, Chitty, J., 10th Jan., 1884.

The schedule to the above order had thii'teen columns, intituled thus: — (1) No.
on list of contributories ; (2) name of contributory ; (3) address of contributory ;
(4) No. of 1/. shares held by each contributory ; (5) amounts due on application ;
(6) dates when due on application ; (7) amounts remaining due on allotment ;
(8) dates when amounts due on allotment ; (9) amounts due in respect of first
instalment, according to terms of prospectus; (10) dates when amounts due in
respect of first instalment; (11) amounts due in respect of second instalment,
according to terms of prospectus ; (12) dates when amounts due in respect of
second instalment; (13) total amounts due on ajiplication, allotment, and first and
second instalments.



Form 557. Upon the applicon of the liqr, &c., Order that the applicant be at

z^ llbortv to institute and prosecute actions, and take such proceedings as

Liberty to sue -^ -^ t • t • ixr i> a i, i

contributory may be necessary and as lie may bo advised against W., 01 Aberdeen,



CONTRIBUTOEIES. 493

Nortli Britain, one of tlie contributories of tlio sd coy, -wlio is resident out of juris-
out of the jurisdiction of this lion. Ct, to recover payment from the sd ^..^^i^ mude
"W. of the sum of 175/., such sum being the capital amount due from before wmd-
him in respect of seven calls made by the directors of the sd coy prior "^S""P-
to winding-up of the sd coy on the following dates, namely, the 17th
Sept., 1879, 21st July, 188G, 23rd Oct., 1886, &c., and i^ayable on the
following dates resply, that is to say, (1) 22nd Oct., 1879, (2), &c.,
togetlier with interest calculated at the rate of 10/. p.c. p. a. on the
sd several calls, making up such capital amount from the respivc dates
when the same were payable down to the date of payment. New
Zealand Ayricultural Co., Chitty, J., 1st March, 1892.

CoMPEOMiSES WITH CoNTEiBUTOEiES. See Chapter XL VII.

Dividends or Returns to Shareholders.

Sect. 109 of 1862. — The Court shall adjust the rights of the contributories
amongst themselves, and distribute any surplus that may remain amongst the
parties entitled thereto.

The jurisdiction is to adjust their rights qud contributories only. Alexandra
Falace Co., 23 C. D. 297.

The rules of 1890 contain no express provision with regard to dividends to share-
holders, but the payment of such dividends, where there is a surplus, is obviously a
thing necessary for winding-up the affairs of the company and "distributing its
assets " witliin the meaning of sect. 95 of 18G2, and accordingly the liquidator can
pay the same "without the sanction of the Court or of the committee of inspec-
tion." Sects. 12 (2), and 22 (1) of 1890, and 23 (1) of 1890.

The Board of Trade, however, now takes the view that in no case should the
adjustment take place without the sanction of the Court. Forms have been pre-
pared for use accordingly, and several orders have lately been made on the
application of the official receiver. See Forms 557a (and notes), 559, 561, and 562.

As to the mode of distribution, prima facie, if all the shares are fully paid up, the
assets are distributed pro rata, but very commonly some shares are fully paid up
and some not. In such cases the assets must prima facie be distributed so as to
throw the loss of capital on the members in proportion to the nominal amount
of the capital held by them respectively. Maude's case, 6 Ch. 51.

Prt?wi /a«e preference shares are not entitled to any preference in winding-up.
London India Rubber Co., 5 Eq. 518.

And where some shares have been issued at a discount, the holders must primd
facie be treated as holders of only partly paid shares, and must, if necessary to
adjust the rights of the contributories, pay up accordingly. Re Railway Time
Tables Co., (1895) 1 Ch. 255 ; affirmed byH. L.,W. N. (1897)42 ; JFeymouth Racket
Co., (1891) 1 Ch. 66.

And where after paying off the whole of the paid-up capital there is a surplus,
that surplus is prima facie distributable pari passu. Birch v. Cropper, 14 App.
Gas. 525. And see Wakcjield Rolling Stock Co., (1892) 3 Ch. 165.

As to the distribution of profits earned before and after liquidation, see Bridge-
water Navigation Co., (1891) 2 Ch. 317 ; Bishop v. Smyrna Railway Co., (1895) 2 Ch.
266, 596.

But the articles of association or special contracts may have given some con-
tributories a preferential right in the distribution of assets. See Part I., p. 381.



491



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



Sometimes the articles expressly provide for the distribution in a winding-up of the
" surjjlus assets." This is not a technical expression. The words may mean the
surplus after paying off creditors, or the surplus after paying off creditors and
paid-up capital. The context and circumstances must be considered. See New
Transvaal Co., (1896) 2 Ch. 750.

A contributory who is indebted to the company for calls or otherwise will not be
paid a dividend unless he pays up.

Where a call has been made on the B. List (past members), and it eventually
appears that the contributions of the present members are sufBcient, the persons
on the B. List will be entitled preferentially to a return of what they have paid.
Helbert v. Banner, L. R. 5 H. L. 41.

Where it appears that there is a surplus, there is nothing to prevent paid-up
shareholders from coming in and claiming to be placed on the list.

As to the title of persons claiming under a Scotch sequestration, see Tuticorin
Cotton Press Co,, W. N. (1894) 181.

As to right to dividends being statute barred, see Swern, S;c. Co., (1896) 1 Ch. 559.



Form 557a.

Report of
official re-
ceiver and
liquidator on
summons for
leave to
adjust.



{Full Title aiul reference to record.')

The off recr and liqr of the above-named coy reports to the Ct as
follows : — (1) The first schedule hereto contains particulars of the assets
of the above-named coy come to the hands of the off recr and liqr of
the sd coy, and also particulars of the payment made by him in respect

of the debts of , and the costs, fees, and charges of winding-up

the affairs thof, which leaves a sum of 267^. 6s. 2>d. in the hands of the
off recr available for distribution among the contributories of the sd
coy. (2) persons have been settled uj)on the list of contri-
butories of the sd coy in respect of a total number of 65 shares, seven
subscribers' shares of \l. each, and 58 ordinary shares of 100^. each;
the second schedule hereto contains the names and addresses of such

persons, with the number of shares held by them resply, the total

amounts called and pd up in respect of the shares held by them resply
and the amount of the arrears of calls (if any) due from them resply.
(3) The sd sum of 267^. 6s. '?)d. is sufEcient to pay a sum of Is. per
share to all contributories of the sd coy holding subscribers' shares, and
hi. per share to all contributories of the sd coy holding ordinary
shares, upon whose shares in each case are no arrears of calls unpaid.
Dated the day of February, .1897.

In connection with this form and the summons below (Form 559), three other
forms are used in the official receiver's office, viz. : — -^ Nos. 315, 316, and 317.
No. 315 is a " statement of account to registrar on ajiplication for leave to make a
return to contributories." It is a debtor and creditor account, showing the position
of the company at the date of the application for leave to make a return to the
contributoricH. In form it is much the same as the statement in Form 697, infra,
Chap. LI. No. 316 is a "list of contributories entitled to a return of caiiital."
It contains ten columns headed — (1) No. in settled list ; (2) Name of contributoiy ;
(3) Address ; (4) Number of shares held ; (5) Total called-up value ; (6) Total
paid-up value ; (7) Arrears of calls ; (8) Previous returns of capital by liquidator,
retained for urreurs of calls ; (9) Amount of return payable at per share ;



CONTRIBUTORIES. 495

(10) Net return payable. No. 317 is a " return list," containing twelve columns,
much the same as in 316, but column one is headed "Consecutive number," and
column twelve "Remarks."



Let, &c., for an order that the applicant be at liberty to pay to the Form 558.

contributories of the coy a dividend of s. in respect of each share Summons for

in respect whereof they are resply contributories, and that the costs, leave to pay

„ dividends to

^^' shareholders.

It is wise in many cases to apply to the Court to sanction a dividend, e.ff., "when
there are disputed cases, or when there are outstanding claims ; and, as mentioned
above (p. 493), the Board of Trade now invariably follows this practice. See next
form.



Let, &c., on the hearing of an ap2)licon of the oif recr, the liqr of the Form 559.
above-named coy, for an order that he be at liberty to adjust the rights Summons
of the contributories of the sd coy, by paying to the persons named in *"r leave to
the second schedule to his report, dated this day, the sums set opposite °

their names in the tenth column of the sd second schedule, by way of
return of capital at the rate of Is. per share to contributories holding
subscribers' shares, and 51. per share to contributories holding ordi-
nary shares of the sd coy.

The above is the form of a summons issued in February, 1897.

Upon the aj)plicon of T. "W,, the [off recr and] liqr, &c., and upon Form 560.



hearing the solors for the applicant and for J. B., a contributory of Liberty to
the sd coy appearing in person, and upon reading, &c., and it aj^pear- P^J" dividend
ing that the only contributories of the sd coy holding fully paid-up tories.
shares are those mentd in the second column of the schedule hto,
Order that the sd [off recr and] liqr be at liberty, out of the assets of
the sd coy, to pay the several sums mentd in the eighth column of such
schedule to the sd persons mentd in the second column thof, being a
return of 11*. 6d. per share to such persons as contributories of the sd
coy, after deducting the several sums due from them to the sd coy
mentd in the seventh column of the same schedule.

Schedule.

Contributories holding paid-up Shares.

[There were eight columns headed respectively — (1) Xo. on list;
(2) Name ; (3) Address ; (4) Description ; (5) No. of shares ; (6)
Amount of return at lis. 6d. per share; (7) Amount of indebtedness;
(8) Amount to be paid.] Hullyhush CulUenj, &fc. Co., 10th May, 1877.
A. 1018.



496



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



Form 561.

Order to
adjust rights
of contribu-
tories.



Upon tlie applicon of B., the senior off recr and liqr of the above-
named coy, by summons dated, &c., and upon hearing the applicant in
person, and the solor for C, a contributory of the sd coy, and for L.
of, &c., hnftr named, and upon reading the order to wind up the sd
coy, dated, &c., the report of the applicant made to the Ct and dated,
&c., and the afft of the sd L., filed this day, and the exhibits therein
referred to, it is ordered that the sd off recr and liqr be at liberty to
adjust the rights of the contributories of the sd coy by paying to the
persons named in the second schedule to his sd report (other than to
S. and P.) the amounts set opposite their respive names in the tenth
column of the sd second schedule. And it is ordered that the amounts
payable in respect of the 200 founders' preference shares, numbered

to inclusive, standing in the name of the sd S., and the 100,

&c., standing in the name of the sd P. be pd to L. of, &c. Royal Trusts
Assets and Securities Insurance Corporation (1892, P.. 0149), Hope,
Peg., 3rd Oct., 1896.

See notes, supra, p. 493.



Order adjust
ing: rights.



Form 562. Upon the applicon, &c., and the Ct being of opinion that the persons
named in the first schedule hereto are not, in the events which have
happened, entitled to any share in the assets of the sd coy in the hands
of the off recr and liqr, but that P., one of the persons named in the
first schedule hereto, is entitled to receive payment of interest at the

rate of 5 p.c. p. a. (less tax) on the sum of 1., from to ,

It is ordered that out of the funds in the hands of the sd off recr and
liqr, after providing for the debts of the sd coy, and the fees, charges,
and expenses of the winding-up of the sd coy, he be at liberty to pay
to the sd P. the sd interest, and that he be at liberty to distribute the
balance in his hands amongst the persons named in the second schedule
hereto rateably in proportion to the number of shares held by them
resply. Aldrington Estate Investment Co.^ 23rd Dec, 1895, Hood, Reg.



Order to
make cull to
adjust rights
of ooutribu-
torios.



Form 562a Upon the apxilicon of C, the off liqr of the above-named coy, by
summons dated, &c., and upon hearing the solors for the a]3plicant,
and upon reading the order dated, &c., the chief clerk's certificate of
the settlement of the list of contributories dated, &c., the afft of C.
filed <5i:c., It is ordered that, for the purpose of equalization and adjust-
ing the rights of the contributories among themselves, a call of the
respective amounts per share set out in the sixth column of the schedule
hereunder written bo made on the shares of the several contributories
of the sd coy whoso rosi)ectlvo names and addresses appear in tho
seccmd and third columns of the sd schedule.

And it is ordered that tho sd several contributories named in tho



co^'TJ^I{UTO]aIl:s. 497

schedule hereunder written do within seven days after the service on

them resply of this order pay to the sd C, at his office, No. ,

Street, in the City of London, the respective sums set opposite their
respective names in the seventh column of the sd schedule, such sums
being the amounts due from them resply in respect of the sd call.
Silver Valley Alines, Kay, J., 19th Jan., 1886. B. 13G.

The applicon of G-. and C, &c. [contributories' representatives], Form 563.



which upon, &c. [adjournment into Ct], coming on, &c.. This Ct being Declaration
of opinion that all moneys received by the [off] liqr of the sd society as to retiirn
by virtue of any compromise with a contributory, are in every case in -y^here com-
which such compromises have been made ai^plicable in the first .place promise
in or towards payment of the amount due from such contributory in ^ ^'^ ^ '
respect of his subscribed capital of 20^. per share and interest thereon,
and that the residue of such moneys, after payment of what is due
as last afsd, is applicable towards payment of the amount due from
such contributory in respect of the call of 12/. per share, made on
the 28th July, 1873, on any further calls beyond that amount. Doth
order that an account be taken of the proceeds of the call of 12/. per
share made on the 28th July, 1873, come to the hands of the [off]
liqr or to the hands of any other person or persons by his order or
for his use. And it is ordered that the surplus (if any) of the sd
proceeds, after payment thereout of the debts of the society properly
payable thereout, and the costs of the winding-up, be returned to
and divided between such of the contributories as have pd the sd
call of 12/. in full, in proportion to the amounts pd by them resply
in respect of such call. And let the costs of all parties of and inci-
dent to this applicon and consequent thereon be taxed by the taxing-
master, and be pd and retained by the sd [off] liqr out of the assets of
the sd society. International Life Assurance Societij, Malins, V.-C, 9th
June, 1877. A. 1398. See report in 47 L. J. Ch. 88.

On the applicon of U., &c., and it appeai-ing that the sd E., as the Form 564.

leg pers rep of the sd B., has pd all the calls on the shares standing in Order in

his name, Order that any return wliich may be made in respect to the j*^^. j !° -,

, , dividends due

shares standing in the name of the sd B. be pd to the sd R. as such to deceased
leg pers rep. And it is ordered that the costs of the [off recr and] contributory.
liqr of and incident to this applicon be costs in the winding-up. West
of England Bank, Pearson, J., 1st Dec. 1883. B. 1752.



Upon, &c., This Ct doth declare that the preference shareholders arc Form 565.
exempted from contributing to any loss, by making any payments or suf- \ 7

fering any deduction in respect of any loss, and that for the purpose of rights and

p. K K



498



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



liabilities of paying the preference shareholders the full amount of principal and
in unreo-is- interest up to payment off, each advanced and unadvanced shareholder
tered building must contribute (the advanced shareholder by payment, and the unad-
vanced by way of deduction out of any moneys which would otherwise
be rejDayable to him or her) a just proportion of the whole of the loss,
present and prospective, including so much of such loss as shall fail to
be met by advanced shareholders liable to contribute thereto, and
including also the expenses of winding-up and interest on the preference



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 66 of 134)