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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from one judge to another, application must be made to the Lord Chancellor, as
before the Act of 1890.



TRANSFER OF WINDING-UP PROCEEDINGS. 507

R. 8 of 1890. — A judge of the High Covirt to wlioin the exercise of tlie jurisdic- Power of
tiou to wind up coiiipauies is assigned may at any time, for good cause sliown, High Court,
order the proceedings in any Court other than the High Court to be transferred to
the Higli Court, or any proceedings in the High Court to be transferred from the
High Court to any other Court. Where the tran.sfer is to the High Coui-t, the
■winding-up shall be assigned to the judge who made the order of transfer.

And see sect. 3, sub-sect. 2, of 1890, supra.

The Act of 1890 did not enable the High Court to wind up a society registered Industrial
under the Industrial and Provident Societies Acts {London and Suburban Bank, and building
(1892) 1 Ch. 604) ; or a building society registered under the Building Societies societies.
Act, 1874 [Real Estates Co., (1893) 1 Ch. 398), and the -winding-up of such societies
could not be transferred from the County Court to the High Court. {Ibid.)

But by sect. 59 of the Industrial and Provident Societies Act, 1893, " any pro-
ceedings in the winding-up of a registered society, which at the passing of this
Act (r2th Sept. 1893) are pending in any County Court, may, on application made
by or on behalf of the registrar, with the consent of the Treasury, be transferred
to the High Court, and thereupon the Companies (Winding-up) Act, 1890, shall,
so far as applicable, apjily thereto accordingly."

And by sect. 8 of the Building Societies Act, 1894, " (1) Notwithstanding anything
in the Building Societies Acts, every society under those Acts shall be deemed to be
a company within the meaning of the Companies (Winding-up) Act, 1890, and
(2) any proceedings in the winding-up of any such society which at the passing
of this Act (25th August, 1894) are pending in the Court," may, on application
by or on behalf of the registrar, with the consent of the Secretary of State, be
transferred to the High Court, and thereupon the Companies (Winding-ujj) Act,
1890, shall, so far as applicable, apply thereto accordingly. See Form 578a.

Paragraph (1) of the above section in e£Pect makes sect. 3 of 1890 {supra, p. 50G),
available as to subsequently commenced proceedings.

Rr. 9—15 of 1890, are as follows :—

9. The judge of any Court having jurisdiction to order the winding-iip of a com- Power of
pany other than the High Court or a Palatine Court may at any time, for good County Court,
cause shown, order any proceedings which have been commenced or arc pending in

his Court to be transferred to any Court which has jurisdiction to order the winding-
up of a company not being the High Court or a Palatine Court.

10. Notice of an application for a transfer of proceedings shall be served on the Notice of
official receiver before the hearing thereof. application.

11. When an order of transfer has been made the person on whose application Lodo-ing
the order is made shall, if the transfer is to the High Court, lodge with the chief order,
clerk [i.e., the registrar] of the judge to whom the winding-up becomes assigned,

and if the transfer is to any other Court with the registrar of that Court, a sealed
copy of the order of transfer.

12. Where the proceedings in any winding-up are transferred by any Court, the Official
official receiver of the Court to which such proceedings are transferred shall become receiver,
the official receiver in the winding-up in place of the official receiver of the Court

from which the proceedings are transferred.

13. Where any proceedings are transferred from a Court to any other Court, the Records,
records of proceedings shall, if the transfer is to the High Court, be transmitted to

the chief clerk [i.e., the registrar] of the jiidge to whom the winding-up becomes
assigned, and if the transfer is to any other Court to the registrar of that Court.

14. As soon as the chief clerk [i.e., the registrar] of the judge (if the transfer is Notice of
to a judge of the High Court) or the registrar of the Court (if the transfer is to any transfer,
other Court) has received the records of proceedings from the Court from which the
transfer is made, he shall give notice of the transfer to the official receiver of the



508



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



New number.



Excluded

County

Courts.



Court to which the proceedings are transferred, who shall give notice of the transfer
to the Board of Trade. When a winding-up is transferred from one Court to
another, it shall receive a new distinctive number.

15. Whenever the Lord Chancellor, by order under his hand, shall exclude any
County Court from having jiu-isdiction under the Acts, or shall attach the district
or any part of the district of a County Court to the High Court, or any other County
Court, or shall detach the district or any part of the district of any County Court
from the district and jurisdiction of the High Court, any winding-up business
pending in the Court or district to which the order relates shall become transferred
to such Court as shall be mentioned for the purpose in the order ; and, thereupon,
the rules as to transfer of proceedings shall apply to the transfer of such pending
proceedings in all respects as if the proceedings had been transferred by order of a
Court having power to transfer proceedings.

See order of Lord Chancellor of 29th November, 1890, excluding from jurisdiction
the County Courts not having jurisdiction in bankruptcy.

As to transfers from the Lancaster Chancery Coizrt, see 53 &c 54 Vict. c. 23.



Form 575.

Summons for
transfer from
County Court
to High
Court.



In tlie matter of the Cos Acts, 1862 to 1890, and In the matter of a
peton presented in the County Ct of Warwickshire, holden at
Coventry, and In the matter of W. Laxon & Co., Limtd.

Let W. Laxon & Co., Limtd, whose registered offices are at

High Street, Coventry' — A., B., C, D., E., F. and G. being the several
persons appearing in the proceedings in the above-mentd matter —
attend, &c., on Saturday, the 21st day of May, 1892, at 10 of the clock

in the forenoon, on the hearing of an applicon of H., of , the petr

in the sd proceedings, for an order that such proceedings be trans-
ferred from the County Ct of Warwickshire, holden at Coventry, to the
High Ct of Justice.

This summons was taken out by, &c., to, &c. If you do not attend, &c.
Before you will be heard in chambers, you will have to enter an
appearance in the office of the registrar at the Bankruptcy Buildings,
Carey Street, Lincoln's Inn, and give notice of such appearance.

Stamp on the above order 10s.

The application should be by originating summons as above. The transfer can be
made even before a winding-up order has been made. Laxon S; Co., (1892) 3 Ch. 31.

The form of summons must now accord with the new practice. See Form 751,
infra, Sect. II.

For form of originating summons by Registrar of Friendly Societies under sect. 8
of the Building Societies Act, 1894 {supra), see Liberator Building ISociety (007 of
1895), and for the order made therein, see Form 578a.



Connty Court
to High
Court.



PiiACTicE Directions, May, 1892.

No application for tho transfer of the winding-up of a company or any proceed-
ings therein, from a County Court to the High Court, will be entertained until tho
list of parties who liavo given notice of their intention to attend the hearing of the
petition has been closed. Tho party applying for such transfer must give four
days' notice by postal letter of tho application for that purpose to the petitioner,



TRANSFER OF \V1^•DI^•G-U^' I'liOCKKDIXOS. i>^ 9

respondent, and to all parties in the list above mentioned. Such letter must state
that, unless notice is j^iven to the applicant by any of the above-named parties
of intention to oppose, the application for such transfer will be taken as not objected
to by the parties. No costs will be allowed to any parties appearing to support or
oppose a transfer as above mentioned, unless for special reasons the judge shall
otherwise determine.

An application by the official receiver and provisional liquidator may be made
ex parte. See Form 577, infra.

( Ordinary High Court Title, omitting name of com,pany), and Form 576.

In the matter of a Peton presented unto the County Ct of Warwickshire, Order of
holden at Coventry, in the matter of W. Laxon & Co., Limtd. above sum-

Ui)on the applicon of H. & H., of , the petrs in the above pro- °^"^^-

ceedings, by originating summons, dated 12th May, 1892, and upon

hearing counsel for the applicant, for and for , and

parties who have given notice of their intention to appear on the hearing
of the peton presented to the County Ct of "Warwickshire, holden
at Coventry, and upon the peton to wind up the above-named coy pre-
sented unto the sd County Ct on the 25th Feb. 1892, an afft, &c., and

no one appearing for and , although served with notice of

this applicon, as by the afft of C, filed, &c., appears, and the judge
being satisfied that the off recr at Coventry has had notice of this
applicon, it is ordered that the sd peton now pending in the County Ct
of Warwickshire, holden at Coventry, be transferred to this Ct (Cos
Winding-up), and it is ordered that the costs of all j^arties to
the applicon be reserved. W. Laxon ^- Co. (0030 of 1892), Vaughan
Williams, J., 2nd June, 1892. And see the report (1892) 3 Ch. 31.

Let all parties, &c., On the hearing of an applicon of C. J. S., the off Form 577.
recr and prov liqr of the above-named coy, for an order that all further Ex parte
proceedings in the liquidation of the above-named coy may be trans- summons by
ferred to the City of London Ct. ^^^^^J^^^ ^^^

Dated, &C. transfer.

The above was the form of summons [ex parte) in Real Estates Co., ubi supra.



Upon the applicon of [name of applicant'], and upon hearing , Form 578.

and upon reading , it is ordered that the sd proceedings be trans- ~, ~

ferred from the \^Ct from ivhivh the transfer is to be made] Ct to transfer.

the \_Ct to ivhich the transfer is to be made] Ct.

Dated this day of , 189—.



Form 3 of
1890.



Upon the applicon of the Registrar of Friendly Societies, of 28, Form 578a.
Abingdon Street, in the City of Westminster, by originatiug summons Transfer of



510



WINDlX(i-UP BY THE COURT. [CuAP. XLI.



winding-up
of building
society to
High Court.



dated, &c., and upon hearing the solor for the applicant and Samuel
Wheeler, the off recr and liqr of the above-named L. Society, the
respt to the sd summons appearing in person, and upon reading the sd
originating summons, the afft of, &c. and the exhibit therein referred
to, being the consent to the sd applicon of the Et. Hon. Herbert Henry
Asquith, Q.C., M.P., one of her Majesty's principal Secretaries of State,
and the afft of, &c.. It is ordered that all further proceedings in the
•u-inding-up of the above-named L. Society be transferred from the City
of London Ct to this Ct. Liberator Permanent Benefit Building Society
(007 of 1895), Hood, Eeg., Jan. 11th, 1895.



See sect. 8 of the Building Societies Act, 1894.
State must be placed on the file.



The consent of the Secretary of



Form 578b. Upon the applicon by summons, dated, &c., of C. J. S. the off recr and
^ 7 I prov liqr of the above-named coy, and ujDon hearing the solors for the
CountyCourt. applicant, and upon reading the order to wind up, dated, &c., and the
report of the assistant off recr dated, &c., it is ordered that the pro-
ceedings in this matter be transferred from the High Ct of Justice

(Cos Winding-up) to the County Ct of , holden at . And it

is ordered that the applicant's costs of this apjjlicon be costs in the
winding-up. East Boldon Freehold Land Society (00185 of 1893),
Vaughan Williams, J., at Chambers, 2nd August, 1893.

And see Company of Froprietors of Somersetshire Coal Canal Navigation, 00207 of
1893, Vaughan Williams, J., 11th Aug., 1893 ; Milford Eaven Shipping Co., "W. N.
(1895) 16.



Form 579.

Notice of
transfer of
proceedings
to the Board
of Trade
and official
receiver.
Form 4 of
1890.

Form 580.

Order of
Board ui
Trade ap-
pointing
official
receiver of
County Court
deputy official
receiver in



The proceedings in the winding-up of the above-named coy have

been, by order dated the , 1 8 — , transferred to this Ct from the

[High Ct, or the County Ct of , holden at , or as the case may

be'], and have the above letter and number allotted to them. The
letter and number before transfer were .

Dated this day of 189—.



{Title.)

Whereas under and by virtue of clauses 2 and 3 of E. 162 of the
General Eules made pursuant to sect. 26 of the Cos (Winding-up) Act,
1890, it is provided that when the Board of Trade appoints an officer
to act as deputy for or in respect of an off recr, any j)erson so appointed
shaU during his tenure of office have all the status, rights, and privi-
leges, and bo subject to all the liabilities of the off recr. And whereas
C. J. S., the off" recr under the Cos (Windiug-up) Act, 1890, attached



TEANSFEE OF WINDING-UP PROCEEDINGS. 511

to tlio High Ct of Justice, has applied to the Board of Trade to -windin^^-up
nominate some fit person to be his deputy in the above-mentd matter. j^^Jy^ Court
Now it is ordered, and the Board of Trade do by tliis order nominate
G. T. P., the off recr for the district of the County Ct holden at
Coventry, to be deputy for the sd C. J. S., and to act for him from
20th July, 1892, to 31st Dec. 1892, both inclusive, in all matters
relating to the winding-up. Power is reserved to revoke this appoint-
ment at anytime before the 31st Dec. 1892. Dated, &c. Smith,

Inspector General in Cos Liquidation. W. Laxon ^ Co., of 1892.

Filed 10th Auff. 1892.



512



WINDING-UP BY THE COUirr. [ClIAP. XLII.



CHAPTER XLII.



ASSIGNMENT AND TRANSFER OF ACTIONS AFTER WINDING-UP ORDER,



"Winding-up
judge may
transfer
actions.



Registrar's

powers.



Debenture
actions.



Retained
cases.



Lord Chan-
cellor's power
as to deVjen-
tiire actions.



Award.



Application.



All debenture holders' actions commenced against companies against which com-
pulsory winding-up orders have been made must now be assigned to the winding-
nj) judge. See Practice Master's Direction, post, Appendix (C).

The Winding-up Department at once gives notice to the Central Office that a
compulsory winding-up order has been made, in order that the above-mentioned
direction may be obeyed.

R. 14 of April, 1892. — (1.) Where an order has been made in the High Court for
the winding-up of a company on a petition presented on or after the 1st day of
January, 1891, the judge of the High Court shall have power, without further
consent, to order the transfer to him of any cause or matter pending in any other
Court or division brought or continued by or against the company.

(2.) Where any action brought by or against a company against which a winding- up
order has been made is transferred to the judge of the High Court, the registrar
may, under the general or special directions of the judge, hear, determine, and deal
with any application, matter, or proceeding which, if the action had not been
transferred, would have been determined in Chambers.

(3.) Provided always that nothing in this rule, or in Order XLIX. r. 5, of the
Rules of the Supreme Court, 1883, shall authorize the transfer of any action by a
mortgagee or debenture holder for the purpose of realizing his security, nor the
transfer of any action which is not brought to enforce payment of a debt or demand
provable in the winding-up.

R. 14 (1) of April, 1892, follows, substantially, the wording of R. S. C,
Ord. XLIX. r. 5, which still applies to winding-up cases retained by Chitty, North,
Stirling, and Kekewich, JJ. See Rr. 1 and 37 of Ap. 1892.

But, although R. 14 (3) prohibits Vaughan Williams, J., from transferring to
himself mortgagees' and debenture holders' actions, several orders have since been
made by the Lord Chancellor transferring a great number of such actions to
Vaughan Williams, J. And, having regard to the Rules of August, 1892, it
Kceuis intended that these actions shall be transferred by the Lord Chancellor to the
winding-up judjrc of the High Court as a matter of course.

Proceedings to enforce an award seem to be an "action pending." TJ'cst v.
Downman, W. N. (1879) 13. And a petition in another Court or division is
apparently a "cause or matter." See An. Pr. (1897) 902.

The application may be made ex parte, as in the order below, or on summons. See
Field V. Field, W. N. (1877) 98; JFhilakerv. Rohuisou, W. N. (1877) 201; United
Kingdom Electric, 29 W. R. 332 ; In re Sharpc, W. N. (1884) 28. As to transfer of
petitions, sec .supra, Chap. XLI.

An action is "pending" notwithstanding judgment has been signed.



TRANSFER OF ACTIONS AFTER WINDING-UP ORDER. -^13

The words "Court or " enable a transfer to be made in reg-ard to an action pend-
ing in the same division. Re Sharpc, uhi supra. And sec Be Madras Co., 16 Ch. D.
702, as to the old rule. (R. S. C. 1875, Ord. LI. r. 4.)

As to the meaning of "judge" and "registrar" in R. 14 of 1892, see R. 35 (1)
of 1892, siqmi, p. 8.

Rr. 1 to 3 of Aug. 1892, are as follows :—

1. Where any action is transferred to the judge who for the time being exer- "Winding-up
cises the jurisdiction of the High Court to wind up companies, the registrar under matter."

the Companies (Winding-up) Rules may, subject to the general or special directions
of the judge, hear, determine, and deal with any api)lication, matter or pro-
ceeding which, if the action had not been transferred, would have been dctennincd
in Chambers.

2. In every cause or matter within the jurisdiction of the judge, whether by
virtue of this Act, or by transfer or otherwise, the registrar shall, in addition
to his powers and duties under the Companies (Winding-up) Ru1t?s, 1890 and
1892, have all the powers and duties of a master, registrar, chief clerk, or taxing
master.

3. In the Companies (Winding-up) Rules, 1890 and 1892, and these Rules, the
words "winding-up matter" shall, in relation to the High Court, where the wind-
ing-up of a company is proceeding before the judge, include anj^ action brought
by or against that company which has been or shall be transferred to the judge.

As to using judicature stamps in transferred actions, see Chap. XXXVIII.



Upon motion this day by counsel for liqr, and upon reading [tvinding- Form 581.

lip order], Order tliat the action of Shears v. The [_C'oy'], 18S2, S. 4650, ~

now pending in the Queen's Bench Div. of the High Ct of Justice, he transferrin^-



transferred to the Chancery Div. of the High Ct of Justice, and that Queen's
the same he assigned to the Ct of Vice-Chancellor Sir J, Bacon, gio^ action.
Clayton ^ Co., Bacon, V.-C, 3rd March, 1883. A. 401.

A supervision order had been made in the above case.



Upon the applicon of the coy and the prov off liqr, and upon hearing Form 582.
the soh's for the applicant and for T., the pit, &c.. Order that the sd



Order
action commenced by the sd T. against the sd coy in this Div. of the transferring

High Ct of Justice, and attached to the Ct of Mr. Justice Pearson, the gj;'.''?^^^

short title of which is, &c., be transferred from the Ct of the sd Mr. action.

Justice Pearson to the Ct of Mr. Justice Chitty. And order that the

costs of and incident to this applicon be costs in this matter. Globe

Sleamshijj, Chitty, J., 12th July, 1884. A. 1090.

So, also, in iJoyle v. Northumberland Aveinte Hotel, Chitty, J., 27th June, 1885, Supervision
after a supervision order, transferred the action from Bacon, V.-C, to himself, order.
And in Akerigg Bros., r2th July, 1886, A. 1027, North, J., did the like. But in
Shingleton Ice Co., 31 S. J. 705, Kekewich, J. (the above cases and the following
not being cited), held that the rule did not apply where there was only a super-
vision order.

Sect. 151 of 1862 says that, save as therein mentioned, a supervision order is to
be deemed for aU purposes to be an order for the winding-up by the Court.
P. L L



514



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



And there is nothing ia the Rules of April, 1892, to show that the expression
therein, " Where an order has been made in the High Court for the winding-up of
a company," means exclusively a compulsory order. The Rules in question are
made under the Acts of 1862 to 1890, and under the Judicature Act, 1881. And
obviously it is convenient that, if a supervision order is made, the Court should have
power to order the transfer of an action against the company.



Another.



Form 583. Uiwn the apiDlicon of J. P., the liqr and recr of the above-named
coy, and upon hearing the sobs for the applicant, and upon reading the
order dated the 13th Oct. 1886 [^siijiervtsion^, the writ of summons
issued the 28th Sept. 1886, in the action \_shoi-i title and refereiice to
record'], and an order in the sd action, dated, &c., Order that the
above-mentd action \_title], now pending in the Ct of V.-C. Sir James
Bacon, be transferred to the Ct of Mr. Justice Kay. Re Cardiff L-on,
8fc. Co., Kay, J., 10th Nov. 1886. B. 1518.



Form 584.

Order setting
aside judg-
ment obtained
in action sub-
sequently
transferred to
Chancery
Division.



Upon motion, &c., by counsel for the off liqr of coy, and upon hearing,
&c., Order that the judgment signed by the sd AV., the pit in the sd
action in the Exchequer Division of this Ct for 1,526/. 15s. Ad. on the
23rd July, 1878, be set aside; but this order is to be without pre-
judice to the right of the sd W. to come in as a creditor in the winding-
up of the sd coy. And order that the off liqr's costs of this applicon
be taxed by the taxing master and allowed out of the assets of coy.
Railway Steel, ^c. Co., Williams v. Same Co., Hall, V.-C, 18th Feb.
1878. B. 430; 8 C. D. 183.

After transfer, the Court obtains control over the action, and can stop execution,
or set aside judgment when proper.

And as to the powers of the registrar, see R. 14 (2) of 1892 ; and Rules of Aug.
1892, supra.



Form 585.

Notice of
motion to
Lord Cliau-
cellor to
transfer from
one judge of
High Court
to another.



Take notice that the Lord High Chancellor of Great Britain will be

moved on day, the day of at , or so soon thereafter

as counsel can be hoard, by Mr. , as counsel for the petitioners in

these matters [or as the case may he], that these matters may be trans-
ferred to his Lordship, Mr. Justice , and when so transferred may

be considered as matters originally marked for his Lordship, Mr.
Justice •.

Dated, &c.

Under r. 14 of Ap. 1892, the judge cannot order a transfer of certain kinds of
actions (see supra, p. 512), and accordingly if it is desired in any such case to
procure such transfer, application must be made to the Lord Chancellor. See
Ord. XLIX. r. 1 ; and Memorandum in 1 Ch. Div. 41, as to the practice.

Where all parties cf)nseiit, the application can bo made by petition, to which all
parties must give their written consent ; but if all parties will not consent, the
applicutif)n is usually iriado by motion. Sec, further, Ann. I'rac. (1897) 898.



TRANSFER OF ACTIONS AFTER WINDING-UP ORDER. 515

Uj)oii tlio peton of 11. tliis claj' preferred unto tliis Ct, and tlio solors Form 586.
for the above-named coy, parties, having subscribed the sd poton, ^~1 Z
signifying their consent to the prayer thof, Order that tho above- transfer by
nientd matters marked for the Master of the Eolls be transferred to q^ •,,
the Vice-Chancellor Sir Charles Hall ; and let tho same when so trans-
ferred be hereafter considered as matters originally marked for the
Vice-Chancellor Sir Charles Hall, provided that no order made by the
Master of the Eolls be varied or reversed, othervrise than by the Ct of
Ap. British Guardian Life Assurance Co., Lord Chancellor, 11th May,
1876. A. 836.



ll2



516



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



CHAPTER XLIII.

PRIVATE EXAMINATION AND DISCOVERY UNDER SECT. 115 OF 1862.



Power to order
examination.



How exami-
nation con-
ducted.



Generally
before regis-
trar.

When power
exercised.



Eridenco.



Sect. 115 of 1862, — The Court may, after it has made an order for winding up a
company, summon before it any officer of the company or person known or sus-
pected to have in his possession any of the estate or effects of the company, or



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