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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of Appeal until after such motion or certificate. Per Vaughan Williams, J., to Court of
Clarendon Land, ^c. Co., March 17, 1893, 37 S. J. 357. Appeal.

Where it is desired to appeal from the order of a judge at chambers, application
must first be made by motion in Court to the judge to discharge the order, or else
special leave to appeal must be obtained from him or from the Court of Appeal.
Judicature Act, 1873, s. 50. London and Lancashire Co., 59 L. T. 362 ; LLolloway v.
Cheston, 19 C. D. 516. But see Battler's Wharf, 21 C. D. 131 ; Manchester Val de
Travers v. Stagg, 47 L. T. 556.

The application to the jixdge should be made within the (now) 14 days' limit. Time for
Dickson v. Harrison, 9 C. Div. 243 ; Ee Johnson, 42 C. Div. 505 ; Re Giles, 43 C. applying.
Div. 391 ; Hcatley y. Netoton, 19 C. D. 334. R. S. C. 1883, 0. LVIII. r. 15, as
amended by Rules of Nov. 1893. The Court of Appeal will give leave where
the judge certifies that he does.not wish the case to be reheard, or where the
Court is otherwise satisfied that the case has been deliberately decided by the judge.
Thomas v. Elsom, 6 C. Div. 346 ; Northampton Coal Co. v. Midland, 7 C. Div. 500 ;
Thompson v. Hughes, W. N. (1889) 212; Re Giles, nhi sup.

On tlie part of [the of Uqr of the above-named coy], that tlio order Torm 680.
made in tliis matter, dated 23rd July, 1884, on tlie applicon of A., Notice of



582



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



motion to dis-
charge order
made in
chambers.



whereby it was ordered, &c., may be discharged with costs to be pd
by the sd A.

As to an application as above, before appealing, see sect. 50 of the Judicature
Act, 1873; Diclcson v. Harrison, 9 C. Div. 243; Ilcatley v. Newton, 19 C. D.
234. Such an application is not an appeal, and is not affected by sect. 1 of the
Act of 1894. Boake v. Stephenson, (1895) 1 Ch. 358.



Application
of general
practice.



No appeal as
to extending
time.

When leave
required
(interlocutoiy
order, &c.).



Appeals from the Judge of the High Court.

Sect. 124 of 1862. — Eehearings of and appeals fi-om any order or decision made
or given in the matter of the winding-up of a company by any Court having juris-
diction under this Act may be had in the same manner and subject to the same
conditions in and subject to which appeals may be had from any order or decision
of the same Court in cases within its ordinary jurisdiction ; subject to this restric-
tion, that no such rehearing or appeal shall be heard unless notice of the same is
given within three weeks* after any order complained of has been made, in manner
in which notices of appeal are ordinarily given, according to the practice of the
Court appealed from, unless such time is extended by the Court of Appeal.

The rest of the section was repealed by sect. 5 of the Stannaries Court (Abolition)
Act, 1897.

The Act of 1890, and the Rules thereunder, contain no express provision as to
appeals from the judge of the High Court ; but by R. 178 of 1890, where no other
provision is made, "the practice, proceedings, and regulations shall, unless the
Court in any special case directs, in the High Court, be in accordance with the Rules
of the Supreme Court and practice of the High Court."

In the High Coiu't the judge is " an additional judge of the Chancery Division "
(Order of L. C. of 26th March, 1892), and the practice as to appeals from the judge
is exactly the same as on appeals from other judges of the Chancery Division.
Supreme Court of Judicature (Procedure) Act, 1894 (57 & 58 Vict. c. 16), s. 1: —
(1.) Xo appeal shall lie —

[a) From an order allowing an extension of time for appealing from a judg-
ment or order ; nor
[h) Without the leave of the judge, or of the Court of Appeal, from any
interlocutory order or interlocutory judgment made or given by a judge,
except in the following cases, namely : —

(i) Where the liberty of the subject or the custody of infants is con-
cerned (see Lancashire v. Hunt, W. N. (1895) 52) ; and

(ii) Cases of granting or refusing an injunction or appointing a
receiver ; and

(iii) Any decision determining the claim of any creditor or the liability
of any contributory, or the liability of any director or other officer under
the Companies Acts, 1SG2 to 1890, in respect of misfeasance or other-
wise ; and

(iv) Any decree nisi in a matrimonial cause, and any judgment or order
in an Admiralty action determining liability ; and

(v) Any order on a special case stated under the Ai-bitration Act,
1889; and



* The time is jiovv fnui-tccn days. See Rules of the Supreme Court, 1883,
Ord. LVIII., r. 9, and Rules of the Supreme Court, November, 1893, r. 27. See infra.



APPEALS AND SPECIAL CASE.



683



(vi) Such other cases, to be prescribed by rules of Court, as may iii
the opinion of the authority for niaking such rules be of the nature of
final decisions. See ChllUngworth v. CJuimhcrs, "\V. N. (189.5) 1.'36.

(2.) An order refusing unconditional leave to defend an action shall not be deemed
to be an interlocutory order within the meaning' of this section.

(3.) No appeal shall lie from an order of a judge giving unconditional leave to
defend an action.

(4.) In matters of practice and procedure every appeal from a judge shall be to ipQ -w^hat
the Coui't of Appeal. (A summons for an interim injunction till trial is within this Court,
clause. M^Harg v. Universal, ^c. Co., (1895) 2 Q. B. 81. And so is a summons to
review taxation {Re Oddij, (1895) 1 Q. B. 392) ; also a garnishee order. Uocklcy v.
Ansah, W. N. (1896) 70.)

(5.) \_Appeah to Divisional Courts of High CourtP^

(6.) An application for leave to apjieal may be made ex parte or otherwise, as may How applica-
be prescribed by rules of Court. tio^l '^^^ ^^^^"^

The time for appealing from any order or decision in a winding-up is fourteen

days, to be computed in the case of an affirmative order from the time when the , .

. . . appeaimg.

order is signed, entered, or otherwise perfected, and in the case of a refusal, from

the date of refusal. R. S. C, 1883, Ord. LVIII. r. 9, and r. 15, as amended by

r. 27 of November, 1893. See Msca Coal Co., 4 D. E. & J. 456. The rule applies

to the winding-up order itself, and to an order made in the winding-up, and in a

debenture action. Madras Irrigation Co., 23 C. D. 248 ; National Funds Co., 4 C. D.

305. As to extending time, see Manchester Economic, 24 C. Div. 488 ; South African

Syndicate, 28 S. J. 152. And see Ann. Pr., 1896, pp. 1055, 1063.

Where the order appealed from is in the nature of an interlocutory judgment Notice of
finally settling the rights of the parties, the notice of appeal must bo a fourteen appp''il-
days' notice: in other cases a four days' notice is sufiicient. Stockton Iron Co., 10
C. D. 349 ; West of England Banl; 23 S. J. 601 ; R. S. C. 1883, Ord. LVIII.
rr. 3, 9. And further evidence is not admissible without special leave. Norton v.
Compton, W. N. (1884) 170.

An appeal is brought by notice of motion (see Form 683), which must be served Entry,
within the time limited. The appeal must be entered with the proper officer of the
Court of Appeal before the day named in the notice to appeal for the hearing*.
E. S. C. 1883, Ord. LVIII. r. 8 ; National Funds Co., ubi supra.

In case of an appeal from a winding-up order it seems to be necessary to serve When official
the official receiver as well as the petitioner. See Ex parte TVehbcr, 24 Q. B. Div. 313. receiver

Where an ex parte application has been refused by the Court below, it can be

renewed in the Court of Appeal within four days from the date of refusal, or within ,

'■ '^ •' ex parte ap-

such enlarged time as a judge of the Court below or of the Appeal Court may plications.
allow (R. S. C. 1883, O. LVIII. r. 10) ; subject, however, to the Jud. Act, 1894.

An appeal does not operate as a stay of proceedings, except so far as the judge or Appeal no
the Court of Appeal order. Id. 0. LVIII. r. 16. stay.

If, therefore, it is desired to stay proceeding-s, apjjlication should be made Application
accordingly. The application to stay mxist be to the Court below in the first to stay.
instance, and, in case of refusal, to the Court of Appeal. The application to the
Court below may be made at the time when the order to be aj)pealed from is made.
Suffell V. Bank of England, 25 S. J. 720. If not then made, it must be made by
motion on notice. Republic of Peru v. Weguelin, 24 W. R. 297 (C. P. D.). But the
subsequent application to the Court of Appeal to stay is not an appeal, and, accord-
ingly, may be made after the expiration of the fourteen days' limit. Cropper v.
Smith, 24 C. Div. 305.

As to suspending an injunction granted by the Court of Appeal, see Shelfer v. Suspending
City of London Electric Co., (1895) 2 Ch. 388. injunction.



584



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



Who may
appeal.



Costs.



The liquidator or any creditor or contributory can appeal. As regards the
winding-up order, the company can also appeal, but in such case the Court of
Appeal will readily entertain an application for security for costs. Diamond Fuel
Co., 13 C. Div. 400 ; Photographic Arlists' Co., 23 C. Div. 370.

Irrespective of the Act of 1894 {supra), where the liquidator in a winding-up by
or under the supervision of the Court desires to appeal, he should apply to the judge
for liberty so to do. City and County Co., 13 C. D. 483 ; Silver Valley Mines Co.,
21 C. D. 381. Form 681.

The Court of Appeal will not give the liquidator his costs out of the estate, but
will leave him to apply in the winding-up ( TFestcomb's Case, 9 Ch. 553 ; In re City
and County Co.,nbi supra), &ni where the appeal is dismissed with costs, or an appeal
against a decision in his favour is allowed with costs, the liquidator will as a rule
be ordered to pay them without restricting payment to the assets of the company,
the intention being that he is to pay whether he gets them out of the estate or not.
Ferrao'' s Case, 9 Ch. 355 ; Hounsloiv Brewery Co., W. N. (1896) 47; Western Counties
Bakeries, ^-e. Co., C. A. March 11th, 1897. An exception is made where the liqui-
dator has acted in a quasi -judicial capacity, e. g., by placing a member on the list
of contributories in pursuance of the duty formerly performed by the chief clerks —
and a successful appeal is then brought from his decision. In these cases the order
for costs is " out of the assets of the company." Salisbury- Jones'' Case {2), (1895) I
Ch. 333 ; London Metallurgical Co., (1895) 1 Ch. 758. In either case the liquidator
can apply to the judge in the winding-up to be allowed the costs. See Form 663.

The fact that the liquidator has acted under the directions of the committee of
inspection, if he has acted unreasonably, will not prevent the Court from ordering
him to pay the costs personally. Ex parte Brown, lie Smith, 17 Q. B. Div. 488 ; and
see Chap. XXI.

A motion to the judge to discharge an order made in chambers is a re-hearing,
not an appeal. Sect. 50 of Jud. Act, 1873 ; Boake v. Stephenson, (1895) 1 Ch. 358.

Three copies of any document to be construed to be furnished. Note on Practice, W. N.
(1897) 8.



I



Form 681.

Liberty to
liquidator to
appeal.



IIow leave
obtained.



Ulion the applicon of B. and Y., the [oS] liqrs, &c., Order that the
sd applicants be at liberty to take all necessary and proper proceedings
by way of appeal from the order, dated, &c., made in the matter of an

appeal from the High Ct of Justice, Division, in a cause of ,

plff, and the sdcoy deft. Hooper's Telegraph Works, M. E., 14th June,
1877. A. 1311.

For order giving liberty to a creditor to appeal against an order made in an
action against the company in Ireland, and to use the name of the company, he
undertaking to indemnify the company against all costs and to pay 120/. into
Court by way of security, see International latent Pulp, %c. Co., M. R., 16th
March, 1877. A. 519.

Subject to the Jud. Act, 1894, supra, a liquidator may appeal without obtaining
leave, but in case of failure his costs will not be allowed in the windiug-ui^. City
and County Co., 13 C. D. 475, and other cases, supra, p. 215.

The leave should be obtained by summons at the chambers of the registrar
(sect. 23 (3) of 1890 ; R. 3 (3) of April, 1892), except in cases where the Act of 1894
requires leave, as to which, see supra, p. 529. As to the costs of this application,
and generally as to leave to a liquidator to appeal before the Act of 1894, see
Silver Valley Mines, 21 Ch. Div. 381.



APPEALS AND SPECIAL CASE. 585

But (subject to the Act of 1894), probably the li(iuidator would be allowed his Costs,
costs if he appealed with the sanction of the committee of inspection under
sect. 12 (1) of 1890, unless he acted unreasonably. See Ex farte Brown, supra.

Where the official receiver is liquidator, he applies, at any rate in important Board of
matters, to the Board of Trade for directions ; and the solicitor of the Board of Trade.
Trade takes up the legal business connected with the appeal.

Where an appeal is to be brought from a decision of the winding-up judge, and
there is some hesitation about applying to such judge for leave to appeal, even an
outside liquidator may, it is conceived, take the opinion of the Board of Trade on
the matter under sect. 25 (I) of 1890.



Upon the applicon by summons, &c., of , creditors and con- Form 681a.

tributories of the above-named coy, and upon hearing counsel for -r ., . ,

the applicants and the solor for the off recr and liqr of the above- creditors to

named coy, and upon reading, &c.. It is ordered that, subject to the ^PP*''^ J,^

applicants, the sd, &c., indemnifying the sd off recr and liqr in resj)ect cial receiver.

of all costs and expenses that may be incurred by him, or which he

may become liable to pay in respect of the appeal hnftr referred to,

and in respect of all costs and expenses already incurred by him with

reference to the applicon on which the sd order dated, &c. [appealed

froni] was made, and also his costs of and incident to this order (such

indemnity to be settled by the judge or registrar in case the parties

differ), the applicants be at liberty within the time allowed by the

Rules of the Supreme Ct to appeal from the sd order dated, &c.,

and to use the name of the off recr and liqr for the purpose of such

appeal. Tominil Mines, Limtd., 00208 of 1893. Yaughan AVilliams, J.,

15th April, 1896.



Upon the applicon of the [off] liqr. Order that the sd S. be at liberty Form 682.
to appear by counsel and oi:)pose the appeal of F. and F., defts in the Z~:. ' 7
action of the A. Coy against Churchward, 1879, A. No. 196, from the oppose appeal,
sd judgment, dated 20th Jan., 1883. And order that costs of applicant
of this applicon be costs in the winding-up. Aiivergne Bitumi)ious Co.,
Fry, J., 12th March, 1883. A. 403.

The official receiver and liquidator will probably obtain directions from the Board
of Trade.



In the Ct of Appeal. Form 683.

In the matter, &c. TT^. ".

' _ Notice of

Take notice that the Ct will be moved on day, the day of appeal.

, 189 — , or so soon thereafter as counsel can be heard, by Mr. A.,



as counsel for and on behalf of [B. and C, creditors of the above-named
coy, or as the case may be~\ that \_he7-e state the nature of the applicon, as :
the order made by Mr. Justice in the above matters on the day



586



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



of , may be discharged or varied, or tliat such order may be made

as to this Honourable Ct shall seem fit.]

[/n the case of interlocutory orders not ivitliin the exceptions m
sect. 1 {b) of the Jud. Act, 1894, supra, add: " And further take notice,
that special leave to appeal from the sd decision or order has this
day been obtained from Mr. Justice ."]

Dated this day of , 189 — .



X. Y. & Co., of



Solors for the ahove-7iamed ap2}licanf.



To [wame of respondent, as: B., the [off recr and] liqr of the above-
named coy, and to Mr. , his sol or].

Every application to a judge shall be by motion, and the provisions of Order LII.
shall apply thereto. R. S. 0. of 1883, 0. LVIII. r. 18.

As to the notice of appeal stating the fact that leave to give short notice has been
obtained, see Dawson v. Beeson, Tl Ch. Div. .504.

"Where leave to appeal is necessary under the Act of 1894, the fact that leave
has been obtained, ought, it is conceived, to appear on the notice of appeal.



Form 684.

Order re-
straining
execution on
payment into
Court.



Uj)on motion by counsel for G., in the order dated 23rd July, 1884,
named, and iipon reading the sd order. Order that the sd G. do, on or
before the 20th Aug., 1884, make the payment into Ct mentd in
the schedule hereto. And upon such payment being made within the
time afsd, Order that the [off] liqr of coy be restrained from issuing
execution under the sd order, dated 23rd Jul}^, 1884, until further
order. Universal Fire Co., Kay, J., 11th Aug., 1884.



Form 685.

Order re-
straining ad-
vertisement
pending
appeal.



Upon motion, &c., for J., of , \_and other shareholders'], and upon

hearing counsel for P. and Y., creditors of the coy, upon whose peton
an order was made 18th May, 1877, to wind up the coy, and it appear-
ing by the receipt of one of the cashiers of the bank, dated 23rd May,
1877, that F., the solor of the sd shareholders, has lodged at the bank
to the credit of a Chancery suspense account the sum of 1,116^. 3s. 9^/.,
Order that the advertisements of the sd order dated 18th May, 1877,
to wind up the sd coy, be postponed until the hearing of the appeal
from the sd order. And order that the sd shareholders, on or before
28th May, 1877, do all necessary acts pursuant to the 31st Chancery
Funds Rules, 1874, for the purpose of having the sd sum transferred
by tlicm into Ct to the credit of these matters. Paris SJcating Rink Co.,
Hall, V.-C, 23rd May, 1877. B. 840. See 5 Ch. Div. 959.

Where there is an appeal, the advertisement could, under the old practice, be
restrained as above, on the amount of the petitioning creditor's claim being paid in
as stated in the above order, and in case of a supervision order (the advertisement of
Avhicli is inserted by the petitioning creditor) this may still be done. But now, in
the case of a compulsory winding- uj) order being pronounced, the official receiver



APPEALS AND SPECIAL CASE. 587

fortli-with gives notice to the Board of Trade, ■wliich "shall forthwith cause such
notice to bo gazetted." R. 41 of 1890.

If it is desii-ed to stop the advertisement, application should be made to the judge Staying
at the time when he makes the winding-up order that the order may not be drawn drawing up
up for a certain time, pending an appeal ; but this will probably only bo acceded to
on terms such as the above.



Upon motion, &c.. Order tliat the coy do, on or before 19th Nov., Form 686.
pay to Messrs. M. and Y., the solors for the sd AV. C, ICAl., the amount



Order to stay
of his costs taxed pursuant to the sd order dated 31st July, 1883, the upon pay-

sd solors personally undertaking', in the event of the sd order being iweut of costs

reversed or varied on appeal, to abide by any order the Ct of Appeal

may make as to the refunding of such costs to the coy. And order

that upon such costs being paid all further proceedings under the sd

order be stayed until after the appeal of the sd coy from the sd order

has been disposed of, and the costs of this applicon are to abide the

result of the appeal. Silver Peah Co., Kay, J., 15th Nov, 1883.

B. 1586.

The above order would not be made on an appeal from a winding-up order without
further terms being imposed, but it may be modified so as to be used in the case of
appeals from other orders in the winding-up.

For order in debenture- holders' action staying proceedings against contributory-
declared liable, pending appeal by him to the House of Lords, see Akers v.
Veuve Mo/iier, ^-c. Limtd, (1895) A. 11. Vaughan Williams, J., 29th June, 189G.



Upon motion this day made unto this Ct by counsel on behalf of the Form 687.
above-named coy, and of A. B., a contributory of the above-named Tr~, 7 7
coy, and upon hearing counsel for the applicants and for X. and Y., winding-up
the petrs in this matter, and no one appearing for S., the off recr or^i^r pending
attached to this Ct, although duly served with notice of the sd motion,



and upon reading the order to wind up dated 11th Aug. 1892, and the
afft of the sd A. B., filed, &c.. This Ct doth order that all further pro-
ceedings under the sd order of 11th of Aug. 1892, be stayed until after
the appeal of the applicants from the sd order has been disposed of.
Alfred Betzold ^' Co., Limtd, 0090 of 1892. Bruce, J., 24th Aug. 1892.



Upon motion byway of appeal, (S:c., Discharge the order of 13th Form 688.
Feb. 1892 [^refusing to wind uf\ Order that the coy be wound up by
this Ct, under the provisions of the Cos Acts, 18C2 to 1890 ; And this appeal for

Ct doth appoint W. H., of , chartered accountant, the liqr of the winding-up

sd CO}', upon his giving security ; And order that the sd A. forthwith iug Hqvd-
give security to the satisfaction of the Board of Trade ; And order that <iator.
the sd TV. H., on or in such manner and at such times as the Board of
Trade, with the concurrence of the Treasury, shall direct, pay the



588



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



money received by Mra as such, liqr to the coy's liquidation account in
the Bank of England, as the Board of Trade shall order. Washington
Diamond Co., referred to in North Wales Gimpoivder Co., (1892) 2 Q. B.
220.

But the portion of the order appointing a liquidator is unusual, and seems to be
irregular. See North Wales Gunpowder Co., uhl supra.



Form 689. Uj)on motion by way of appeal this day made unto this Ct by
counsel for C. and B., the surviving liqrs of the above-named coy,
and upon reading the order dated 13th March, 1878, made upon motion,
&c., whereby it was ordered, &c., Order that the sd order dated the
13th March, 1878, be discharged. And order the sd E., &c., to pay
to the sd C. and B. their costs of the sd motion upon which the sd
order was made, and of the sd order and of this appeal. Devonshire
Silkstone Co., C. A., 8th July, 1878. A. 1451.



Order on
appeal dis-
charging
order below.



Form 690.

Order dismiss-
ing petition
and directing
action.



Fees of offi-
cial receiver.



UiDon motion by way of appeal this day made unto this Ct by counsel
for the coy, that the order dated 9th Feb. 1883, made by Mr. Justice

Chitty upon the peton of , might be discharged, and that the sd

peton might be dismissed with costs, and upon hearing, &c., this Ct
doth order that so much of the order of the sd Mr. Justice Chitty, dated
9th Feb. 1883, as ordered that the sd coy should be wound up under
the provisions of the Cos Acts, 1862 [and 1867], be discharged. And
it is ordered that the sd M. and W., creditors of the sd coy, two of the
petrs named in the sd order, dated 9th Feb. 1883, or either of them,
do commence an action on or before 23rd March, 1883, for the re-
covery of the debts in the peton mentd, and the further hearing of the
sd applicon and sd peton do stand over to abide the result of such
action. Peoples Cafe, C. A., 9th March, 1883. B. 452.

Under the old practice, when a winding-up order was discharged as having been
improperly made, the liquidator appointed under it was not entitled to costs or
remuneration. Phimstead Water Co., 11 W. R. 99. But qucere as to the costs of
the official receiver. See Form 690a, where the order was discharged on payment
of debt and costs.



Form 690a. Upon motion this day made unto this Ct by counsel for the above-
named coy and B., a contributory of the sd coy, byway of appeal from
the order of Mr. Justice Vaughan Williams for the winding-up of the
sd coy, dated the 11th day of Aug. 1892, and upon hearing counsel for
M. and I\, the petrs on whose peton such order was made, and iijion
reading the sd order, two affts of B., iilod in the winding-uj), &c., and
the sd petrs by their counsel consenting to tliis order, and tiie off
recr having consented in writing, this Ct doth discharge the sd order,



Order dis-
charging
winding-up
ordfT on i)ay-
mont of debt,
coafcs, &c.



APPEALS AND SPECIAL CASE. 680

and order that tho poton on wliicb. the sd order was made do stand dis-
missed. Alfred Betzold Sf Co., C. A., 17th Nov. 1892. Sco report, 37
S. J. 65.



Upon motion by way of appeal, &c., by counsel for P. and B., that Form 691.



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