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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creditors, who have proved their debts, and to all the contributories receiver's
mentd in the coy's statement of affairs, a notice of the intention of the apply for
off recr to apply to the Board of Trade for his release as liqr of the reicjiso as
above-named coy, together with a statement of his receipts and pay-
ments in the forms hereimto annexed marked "A" and "B" resply.

2. That such notices were addressed to the sd creditors resply,
according to the addresses appearing in their respve proofs.

3. That such notices were addressed to the sd contributories resply
according to their respve names and addresses appearing in the coy's
statement of affairs.

4. That I sent the sd notices by putting the same into the official

letter bag provided by the Postmaster-General for the office of the off

recr before the hour of half-past five o'clock in the afternoon of the sd

day.

Dated this day of , 189—.

(Signed) A. B.

The above is the form used by the official receiver. An affidavit seems to be
necessary in the case of an ontsido liquidator, which may be easily framed from
Form 27 of 1890 (Form 399), and the above certificate.

{Title.) Form 699.

I, Gr. H., the [off recr and] liqr of the above-named coy, do hereby ■ ^ — ^

report to the Board of Trade, as follows : — bv Tinuidator

1 . That the whole of the ppty of the coy has been realised for the to Board of
benefit of the creditors and contributories [and a dividend to the ^^i^^^^ °^

amount of shilHngs in the pound has been pd as shown by the Form 79 of

statement hereunto annexed, and a return of in the pound has ' •

been made to the contributories of the coy] ;

[or That so much of the ppty of the coy as can, according to the
joint opinion of myself and the committee of inspection, hereunto an-
nexed in writing under our hands, be realised without needlessly pro-
tracting the liquidation, has been realised, as shown by the statement

hereunto annexed, and a dividend to the amount of shillings has

been paid]; [add, if necessary, " That the rights of the contributories
between themselves have been adjusted "] ;

2. I therefore request the Board of Trade to cause a report on my

accounts to be prepared, and to grant me a certificate of release.

Dated this day of , 189 — .

G. H. [Off Eecr and] Liqr.

See sect. 22 (1) supra, as to this application, and as to the report on accoimts, con-
sideration thereof, and objection of creditors and contributories.



GOO



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



If a dividend has been paid by cheques on the company's liquidation account, the
liquidator, on the expiration of six months from the date of issue, or on application
for his release, if that event occurs earlier, should return any cheques or postal
orders remaining in hand to the Assistant Secretary, Finance Department, Board of
Trade. B. of T. Beg., January, 1893, No. 10.



Form 700.

Release of
liquidator.



{Title.)
Whereas E. L. was, on the 24tli day of Dec. 1891, appointed liqr of
tlie above-named coy, And whereas on the 13th day of July, 1892, the
sd E. L. gave notice to the Board of Trade that he had resigned his
office and requested the Board of Trade to cause a report on his account
to be prepared and to grant him a certificate of release.

Now, the Board of Trade having taken into consideration the report .
on his accounts, do hereby order that the release of the sd E. L., as
such liqr, be, and the same is hereby, granted. Dated, &c.
By the Board of Trade,

F. W.,
Duly authorised in that behalf by the
President of the Board of Trade.

As to a document so signed being evidence, see sect. 30 (1) of 1890.
The release does not take effect until the liquidator has delivered up his books
and papers. See R. 141 of 1890, supra.



Form 701.

Notice (for
Gazette) of
releases of
liquidators.
Form 86 of
1890.



This form is supplied by the Board, when the off recr is also liqr.
The notice is headed " Notice for London Gazette. Companies ("Wind-
ing-up) Act, 1890. (7) Notice of release of liqr." Then follows Part 7
of Form 15, siqjra. Below are the signatures of the [off recr and]
liqr, and the notice is addressed "To the Inspector- General in Cos
liquidation, Board of Trade, 4, Whitehall Yard, London, S.W."

The form was substituted by the Board of Trade Order of the 13th February,
1891, for the original Form 86 of 1890. The notice is gazetted by the Board of
Trade, the stamp being provided by the liquidator. See R. 149 of 1890, supra.

As to filing a memorandum of gazetting, see Form 16 supra.



601



CHAPTER LII.

dissolution, and destruction of books ; restoration of
company's name.



Dissolution of Company.

Sect. Ill of 1862. — When the affairs of the company have been completely wound Order to
up, the Court sliall make an order that the company be dissolved from the date of dissolve
such order, and the company shall be dissolved accordingly. company.

Sect. 112 of 1862. — Any order so made shall be reported by the official liquidator Report to
to the registrar [of joint stock companies], who shall make a minute accordingly in registrar of
his books of the dissolution of the company. j°^"* ^*°^^

C0I11T)3.I11GS

Sect. 113 of 1862. — If the official liquidator makes default in reporting to the
registrar, in the case of a company being wound up by the Coui't, the order that ^ rem)rtins'
the company be dissolved, he shall be liable to a penalty not exceeding five pounds
for every day during which he is so in default.

Sects. Ill — 113 of 1862 still remain unrepealed, but no macliineiy, in the place Newpractice.
of the Rules of 1862 (Rr. 65 — 67), which are annulled as to compulsory winding-up
proceedings (R. ISO of 1890), has been provided by the Act of 1890, or the Rules
under it.

Between 1862 and 31st December, 1890, it was the ordinary practice in due
course to obtain a dissolution order, but it is believed that no order or application
for dissolution has been made in the case of any company, the compulsory
order to wind up which was made since the 31st December, 1890. Sect. Ill
of 1862 is, however, peremptory as to an order of dissolution being made.

It does not follow, because the time has arrived for a liquidator to apply for his
release, that a dissolution order can be obtained. But when the liquidator is in a
position to make out a statement (to accompany notice of application for release,
see Form 697) which wUl show at the foot that the "assets not yet realised, includ-
ing calls," are nil, it is the proper time to make the application.

This statement seems to contain all particulars stated in the report of the liqui-
dator required under the old practice, and might well be substituted for it. The
report was frequently verified by an affidavit of the liquidator, and the applica-
tion was supported by a certificate of the chief clerk that the liquidator had passed
his final account, that the balance, if any, due from him had been paid, and that
the affairs of the company had been completely wound up. (See Form 55 of 1862.)

The Board of Trade seems to be now the proper authority to grant some such
certificate ; and after (a) it has caused a report to be made on the liquidator's
account, and (b) he has complied with all the requii'ements of the Board, and (c) the
Board has considered such report and any objections of creditors and others (see
sect. 22 (1) of 1890), the Board is quite in a position to give such a certificate as



602



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



■will satisfy the Court and probably render unnecessary an affidavit of verification
by the liquidator.

If an application is made, it should be in chambers by summons. Rr. 3, 5 of
April, 1892.

In some cases orders have been made in the winding-up that no order for
dissolution was to be made without notice to particular persons, e.g., lessors.
Haijtor Granite Co., 1 Ch. 77.



Form 702.

Order for
dissolution of
company and
destruction of
its books.



Upon the applicon of A. B., of, &c., the [off recr and] liqr of the
above-named coy, and upon reading \^prohahly the certificate of the
Board of Trade, dated, &e., whereby it appears that the affairs of the
sd coy have been completely wound up, and that there is not anything
due either to or from the applicant on the balance of his final account
as such [off reer and] liqr as afsd], It is ordered that the sd coy be

dissolved as from the Dec. 189 — . And it is ordered that the

books and papers of the coy other than the file of proceedings in the
winding-up of the sd coy be retained by the applicant for the sj)ace of

year[s] from the date hereof, and then destroyed by him \jome-

times the order continues, by fire, or by cutting or tearing the same into
fragments so as to render them useless as means of information].

For other forms, see Forms 813, 814, 814a.

Independently of sect. 22 of 1890, where there has not been fraud, dissolution is
an absolute bar to an action, e.g., by a creditor who has been prejudiced, against a
liquidator for misfeasance in the winding-up. Coxon v. Gorst, (1891) 2 Ch. 73.
And see Pinto Silver Co., 8 C. Div. 273; London and Caledonian Co., 11 C. Div.
140 ; Knoxclcs v. Scott, W. N. (1891) 39.

Where a company is about to be dissolved, it is very commonly found that certain
creditors or contributories, in whose favour dividends have been declared, have not
claimed the same. The right of such persons was not, even under the old practice,
affected by the non-claim, so as to enable the Court to di\dde the fund among
the other persons interested, or otherwise to deal vrith the same in derogation of
the rights conferred by the order declaring the dividend. Ashley v. Ashley, 4
C. Div. 757.

And see now, as to unclaimed dividends and undistributed assets. Chap. XXIV.



Court may
order books,
&c. to be
disposed of.



Destruction of Books, &c.

Sect. 155 of 1862. — Where any company has been wound xip under this Act and
is about to be dissolved, the books, accounts, and documents of the company and of
the liquidators may bo disposed of in the following way ; that is to say, where the
company has been wound up by or subject to the supervision of the Coiu-t, in such
way as the Court directs, and where the company has been wound up voluntarily,
in such way us the company by an extraordinary resolution dii-ects ; but after the
lapse of five years from the date of such dissolution, no responsibility shall rest on
the company, or tho liquidators, or any one to whom the ciistody of such books,
accounts, and documents has been committed, by reason that the same, or any of
them, cannot be made forthcoming to any i^arty or parties claiming to bo interested
therein.



RESTORATION OF COMPANY'S NAME. 603

The documents (other than the file of proceedings) are now simply directed to
be destroyed. See Form 702a.

It should be bonio in miud that -to & 4G Vict. c. 72, .s. 11, extends the Bankers' Bankers'
Books Evidence Act, 1879, to any company carrying on the business of bankers to books,
which the Companies Acts, 1862 to 1880, are applicable, and which have furnished
to the Registrar of Joint Stock Companies the list and summary recxuircd by the
Act of 1862, with a statement of the place where it carries on business. The Court
ought, in the interests of the public, to delay as long as possible the destruction of
the books of such a company.

As to the rest of the old practice (which still applies in the case of voluntary
liquidations, whether under or not under the supervision of the Court), see post,
sects. 2 and 3.



Upon the capplicon of the off recr by summons dated, &c., and upon Form 702a.
hearing the applicant in person, and upon reading the order to wind p. , , "

up the sd coy dated, &c., and the order of the Board of Trade dated, destroy
&c., whereby it appears that the affairs of the sd coy have been com- """^^^j ^^^
pletely wound up. It is ordered that the books, papers, and documents
of the above-named coy, other than the file of proceedings in the
winding-up of the sd coy, be destroyed. W. N. Watson, Limtd,
Hood, Eeg., 8th July, 1896.

Restoration of Company's Name.

See sect. 7 of Companies Act, 1880, in Appendix.

Having regard to Ocean Queen Steamship Co., (1893) 2 Ch. 666, and Mining Shares
Investment Co., lb. 660, the application ought to bo made to Vaughan Williams, J.
His lordship clearly has jurisdiction. See para. (5) of the section.

For cases in which orders have been made under this section, see Se Financial
Corporation, 27 S. J. 199 ; Ite Estates Investment Co., 27 S. J. 585.



Upon the peton of coy, &c., Order that coy's name be restored to the Form 703.
register of joint stock cos, and that this coy be deemed to have con- Oj.(i~'+Q
tinued in existence as if its name had never been struck off. And restore com-
order that notice of this order be advertised once in the London F^°^ ^ name

to register
Gazette. And order that off liqr pay the registrar of joint stock cos under Act of

his costs of the applicon, to be taxed. And order costs of petrs, in-

eluding costs paid to registrar, to be taxed and paid out of coy's assets.

Estates Investment Co., Chitty, J., 23rd June, 1883.

For petition, &c., see Part I. of this work; but the application may be made on
originating summons.



[^Intitule '■'■In the matter of the Cos Acts, 18G2 to 1890," and in the Form. 703a.
matter of the coy .~\ ~ ~

Upon the applicon of W., a contributory of the above-named coy,
by originating summons dated, &c., and upon hearing the solors for



604 WINDING-UP BY THE COURT. [ChAP. LII.

the applicants for the sd coy, and for the registrar of joint stock cos,
and upon reading \_affts]^ and the above-named coy by its solors
undertaking forthwith to file with the registrar of joint stock cos the
annual returns now in arrear, and also to give notice of the registered
oifice of the coy. And the above-named coy by their solors consenting
to this order, It is ordered that the name of the above-named B. Coy,
Limtd, be restored to the register of joint stock cos. And pursuant to
the Cos Act, 1880, the sd B. Coy, Limtd, is deemed to have continued in
existence as if its name had never been struck off. And it is ordered
that the registrar of joint stock cos do advertise this order in his official
name in the London Gazette. And it is ordered that the above-named
coy do pay to the registrar of joint stock cos his costs of this applicon
agreed at 1/. : 1*., and that the applicants' costs of this applicon be
taxed in case the parties differ, and paid by the above-named coy.
Balmoral Estate {Algoa Bay) Co. (00140 of 1896), Eomer, J., for
Yaughan Williams, J., 4th July, 1896. And see another order by
Eomer, J., for Yaughan Williams, J., in Anglican Church Magazine
Co., Dec. 1896.



005



CHAPTEE LIII.



COUNTY COURTS.



Jurisdiction.

Peioe to the Companies (Winding-up) Act, 1890, the jurisdiction of County Courts Prior to Act
in winding-up was limited as follows : — of 1890.

1. As regards companies, the County Court had no original jurisdiction in winding-
up under the Act of 1862 ; but under the Act of 1867, s. 41, the High Court, where
it had made a winding-up oi'der, had power to direct all subsequent proceedings to
be had in a Covinty Court, and a few such orders were made.

2. As regards building societies registered under the Building Societies Act, 1874
(37 & 38 Vict. c. 42), that Act gave County Courts exclusive winding-up jiuisdic-
tion.

3. As regards industrial and provident societies registered under the Industrial and
Provident Societies Act, 1876 (39 & 40 Vict. c. 45), that Act gave the County Courts
exclusive winding-up jui-isdiction.

The Act of 1890 (s. 33), repealed sect. 41 of the Act of 1867, but invested County Under Act
Courts, with few exceptions, with full original jurisdiction to wind up companies °f 1890.
in England and Wales " where the amount of the capital of a company paid up or
credited as paid up does not exceed 10,000^., and the registered office of the com-
pany is situate within the jurisdiction of a County Court having jurisdiction under
this Act." Sect. 1 of 1890, and the County Courts were still allowed to retain
exclusive jurisdiction to wind up registered building societies and industrial and
provident societies.

The present jurisdiction of Coiinty Courts in winding-up is as follows : — - Present

1. As regards companies, certain of the County Courts have the limited jurisdic- JUEisdiction.
tion given by sect. 1 of the Act of 1890. Companies.

2. As to building societies imder the Act of 1874, and industrial and pro-\ddent Buildino- and
societies, the same County Courts have limited winding-up jurisdiction as if such industrial
societies were companies under the Act of 1862. See the Building Societies Act, ^o^^^ties.
1894, sect. 8 (1), and the Industrial and Provident Societies Act, 1893, sect. 58 (1).

3. As to companies formerly within the jurisdiction of the Stannaries Court, the Stannaries
County Court of Cornwall having jvrrisdiction in banki-uptcy has now winding-up cases,
jurisdiction. Stannaries Court (Abolition) Act, 1896, s. 1 ; Ord. of L. C. 16th
December, 1896, rr. 1 and 6.

The jurisdiction of a County Court which has jurisdiction imder the Act of 1890 What County
extends both to registered and to unregistered companies (see Chap. I.); but Courts have
under sect. 1, sub-sect. 5, the Lord Chancellor is empowered to exclude a County J^^^'^^^'^'on-
Court from ha\Tng jurisdiction "under this Act," and has made an order (29th
Nov. 1890) that a County Court which, on the 1st Jan. 1891, was excluded from



606



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



having jurisdiction in bankruptcy should "be excluded from having jurisdiction
under the Companies (Winding-up) Act, 1890, until further order," and that the
district of any such Coimty Court should, "for the purposes of jurisdiction under
the Companies (Winding-up) Act, 1890, be attached until further order to the
Court to which that district" was attached on the 1st Jan. 1891, " for the purposes
of jurisdiction in bankruptcy." The effect of this order is that several provincial
County Courts and all the Metropolitan County Courts are excluded from jurisdic-
tion under the Act of 1890 ; and that the winding-up jurisdiction, under the Act of
1890, of the Metropolitan County Courts is now vested in the High Court. Cotcrt
Bureau, W. N. (1891) 15.

Sect. 96 of Bankruptcy Act, 1883.— The London bankruptcy district shall, for
the piu^Doses of tliis Act, comprise the City of London and the liberties thereof, and
all such parts of the Metropolis and other places as are situate within the district of
any Coimty Court described as a Metropolitan County Court in the list contained in
the third schedule.

This list in Schedule III. specifies the Bloomsbury, Bow, Brompton, Clerkenwell,
Marylebone, Shoreditch, Westminster, and Wliitechapel County Courts of Middlesex,
and the Lambeth and Southwark Coimty Courts of Surrey.

The district of the City of London Court is part of the district referred to in
sect. 96 of the Act of 1883, and that Court has no jurisdiction to wind up under the
Act of 1890. Per Vaiighan Williams, J., Real Estates Co., (1893) 1 Ch. 398. The Act
of 1890 did not in any way derogate from or interfere with the winding-up juris-
diction of the County Courts as to building societies registered under the Building
Societies Act, 1874 {Real Estates Co., ubi supra) ; or as to societies registered imder
the Industrial and Provident Societies Act, 1876. See as to this London and Subur-
ban Rank, (1892) 1 Ch. 604. And the jiu-isdiction was not dependent on the Court
having banki'uptcy jurisdiction. But now the question of jurisdiction as regards
these societies is dependent on the amount of the society's paid-up capital. See
sect. 1 of 1890.



Court has
powers of
High Court,



General pro-
cedure under
Acts and
Ilules.

Practice when
no express
provi.'-ion.



General Powers and Practice.

Sect. 1 (6) of 1890. — Every Court having jurisdiction under the Act to wind up a
company shall, for the piu-poses of that jurisdiction, have all the poxvers of the High
Court, and every prescribed officer of the Court shall perform any duties which an
officer of the High Com-t may discharge by order of the judge thereof, or other-
wise in relation to the winding-up of a comj^any.

Tliis section is of great importance in relation to County Courts. It gives them
aU the powers of the High Coiu't. See construction of similar words in Bankruptcy
Act, 1869. Reg. v. Judge of C. C. of Surrey, 13 Q. B. D. 963. But it does not
enable County Courts to issue writs of ^. fa. to sheriff. Bassett^s Plaster Co., (1894)
2 Q. B. 96. See R. 20, infra.

Sect. 32 (3) defines the expression "registered office," the situation of which
determines which County Court has jurisdiction.

The general code of procedure under the Acts and the Rules of 1890 applies, where
not otlicrwise stated, to proceedings in the County Courts to which winding-up juris-
diction is given by the Act of 1890.

K. 178 of 1890.— In all proceedings in or before the Court, or any judge or officer
thereof, or over Avhich the Court has jurisdiction under the Acts and rules, when no
other provision is made by the Acts or the.se rules, the practice, proceeding, and
regulations shall, unless the Court otherwise in any special case directs, .... be
.... in a County Court in accordance, as far as practicable, with the existing rules
and practice of the Court in proceedings for the administration of assets by the Court.



COUNTY COURTS. 607

Sect. 164 of County Courts Act, 1888 [gives power to make rules, and says that], In
any ease not expressly by this Act or in pursuance thereof provided for, the general
princijiles of practice in the High Court of Justice may be adopted and applied to
actions and matters.

There has been some difference of opinion with regard to R. 178, so far as it
ailects County Court procedure, especially with reference to e\'idence on the hearing
of the petition, but there is no doubt that the practice of the High Court ought to
be followed.

With regard to the Rules of April, 1892, it must be borne in mind that Part I.,
comprising Rr. 2—17, only applies to procedure in the High Court. The pre-
liminary rule (1) and the rules in the second part, apply generally to all Courts
haATng winding-up jurisdiction, including County Courts, biit none of the rules
apply exclusively to County Court procedure.

The only one of the forms appended to the Rules of 1890 — 92 which relates
specially to County Courts is Form 2 of 1890 (Form 4, supra), which gives the
general title of a winding-up matter proceeding in the County Court. From this
it may be inferred that the framers of the rules intended that the same procedure
should, as far as possible, be the same in all the Courts to wliich winding-up jurisdic-
tion is given by the Act of 1890. R. 146 of the County Court Rules, 1892 (set out
infra), is another stop in the direction of uniformity of procedure.

Kr. 18—20 of 1890 are as follows :—

18. — Subject to the orders of the Lord Chancellor, the place of sitting of each Place and
County Court having jurisdiction imder the Acts shall, for the piirpose of such ''i™? ^^
jurisdiction, be the town in which the Court holds its sittings for the general °'

business of the Court, under the provisions of the County Courts Act, 1888.

19. — Subject to the provisions of the Acts, the times of the sittings of each
Court other than the High Court in matters of the winding-up of companies shall
be those appointed for the transaction of the general business of the Court, unless
the judg-e of any such Court shall otherwise order.

As to matters to be heard in open Court, see r. 5 of 1890.

20. — (1) It shall be the duty of the high bailiff of a County Court to serve Duties and
such orders, summonses, petitions, and notices as the Court may require him to fef;S of high
serve ; to execute warrants and other process ; to attend any sittings of the Court
(but not sittings in Chambers) ; and to do and perform all such things as may be
required of him by the Court.

(2) But this rule shall not be construed to require any order, summons, petition,
or notice to be served by a bailiff or officer of the Court which is not specially by
the Acts or rules required to be so served, unless the Court in any particular
proceeding by order specially so directs.

As to the high bailiff's fees, see Table C. to Order of 17th December, 1891.



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 79 of 134)