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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may be taken at once. So held by Kay, J., in Chdlington Iron Co., 29 C. D. 159,
following a dictum of Lord Denman, in Reg. v. IfOyhj, 12 Ad. & E. 158, and
overruling the d'lcta of the late and present Master of the Rolls in Horhury Bridge
Co., 11 C. D. 109 ; 11 C. Div. 114. See also Fhaenix Electric Co., 49 L. T. 260.

If the company has many shareholders, it is not unusual to appoint scrutineers to Scrutineers,
take the poll, and some articles of association expressly require such appointment.
In a small company the poll is often taken by the chaii'man. In taking the poll it
is usual to cause a list of members to be made out from the register, thus : — ■

List of
members.



Names of


Number of
Shares.


Number of
Votes.


Observations.


Votes given.


Members.


For.


Against.















622



VOLUNTARY WINDING-UP.



Entering
votes.



Close of poll
and report.



Voting on At the time appointed for taking the poll, the members who vote personally will

a poll. come up to the voting table and write their names down on sheets of paper, headed

' ' For " or " Against ' ' the motion, as the case may be. A member voting as proxy
for another will write down his own name and also that of the person whose proxy
he is, e.ff., "John Smith, by W. Jones, his proxy" ; but sometimes it is arranged
that a member signing his own name shall be deemed to vote for himself and for
all those whose proxy he is.

The votes having been taken, the chairman or scinitineers will enter them in the
list of votes, in the column "Tor" or "Against," as the case may be. If, on
reference to the books or otherwise, a vote tendered is for any reason found to be
invalid, e.g., because the voter is in arrear of calls, or because the instrument of
proxy is not duly stamped, or was not deposited in time, the chairman or scruti-
neers will reject the same and put a note in the column of " Observations," stating
the reason for rejection.

The poll having been closed, the numbers will be added up and the result ascer-
tained. Where scrutineers have been appointed, they will make a report in writing

of the result to the chairman. Thus :—" The Company, Limited. We, the

undersigned, being the scrutineers appointed at the general meeting of the above-
named company, held at , on the of -, on the motion, ' That the

report and accounts of the directors be adopted,' and having taken a poll at the

company's ofBce on Monday, the inst., hereby report to you, as the chairman

of the said meeting, that the result of such poll was as follows : —

Number of Votes.

In favour of the motion 700

Against the motion , 327

Majority in favour of the motion , , 373

Dated this of .

I Scrutineers.

To , Esquire,

Chairman of the above-mentioned Meeting."

If desired, the report may show the " number of personal votes in favour of the
motion," and against, and number of votes of members voting by proxy in favour
of or against.

The chairman will then state the result to the meeting, or adjourned meeting, as
the case may be, and declare that the motion has been carried or negatived.

Where a poll has been granted to be taken at a future day without any resolution
adjouruing the meeting, the result of the poll is usually communicated to the mem-
bers by circular or advertisement.

Where a member pi'oposes to vote on a poll as proxy for another, it should be
ascertained —
Precautions 1. That the shareholder appointing him is entitled to vote, e.g., the regulations

as to proxi'.s. sometimes provide that a member in arrear of calls shall not vote, or that new
members shall not vote for three months.

2. That the proxy is competent to act as proxy, e.g., the regulations sometimes
provide that a shareholder in arrear of calls shall not vote as proxy for another.

3. That the instrument appointing the proxy has been deposited in due time.

4. That the itiKtrumont is in proper form and is duly attested where the regula-
tions require attostatioii .

6. That the instrument is duly stamped.

G. Tliat notice of revocation has not been given.



Declaration
of result.



VOTES AND PROXIES. 623

Questions of nicety arise as to 5. See infra.

Unless the regulations otherwise provide, a shareholder who is present at a meet- Members
ing, but abstains from voting on a question put to the meeting, ought not, it would abstaining
seem, to be counted as voting either w^ay. ^"''^ ^^ '°^'



VOTES AND PEOXIES.

The number of votes which a member is entitled to depends on the regulations of Number of
the company. "In default of any regulations as to voting every member shall votes,
have one vote." Sect. 52 of 18G2. But generally it is provided that a member
shall have one vote for each share, or, at any rate, a number of votes proportioned
to his shares ; and very commonly it is provided that no member shall have more
than a certain number of votes, e.g. , fifty. Where this is so, a member may distribute Distributing,
some of his shares among his friends as trustees for him, and thus increase his
voting power. Stranton Steel Co., 16 Eq. 559 ; Pender v. Liishington, 6 C. D. 77.

Very commonly (as in cl. 47 of Table A) a member cannot vote unless he has been Table A,
possessed (i.e., registered in respect) of the shares for three months before the meet- '*

ing at which he proposes to vote. Unless otherwise provided, this does not i^revent
voting (at any rate, in person) at an adjourned meeting held after, though the
original meeting was held within, the three months.

Unless the regulations authorise voting by proxy, votes must be given personally. When proxies
For usual form of instrument appointing a proxy, see Table A, cl. 51. allowed.

The Stamp Act, 1891 (54 & 55 Vict. c. 39), charges every instrument of proxy Stamp on
" For the sole purpose of appointing or authorising a proxy to vote at any one proxies,
meeting at which votes may be given by proxy, whether the number of persons
named in such instrument be one or more," with the duty of Id. And the Act con-
tains the following sections, which must be carefully borne in mind : —

80. — (1.) Every letter or power of attorney for the purpose of appointing a proxy
to vote at a meeting, and every voting-paper hereby respectively charged
with the duty of one penny, is to specify the day upon which the meeting
at which it is intended to be used is to be held, and is to be available only
at the meeting so specified, or any adjournment thereof.
(2.) The said duty of Id. may be denoted by an adhesive stamp, which is to be
cancelled by the person by whom the instrument is executed, and a letter
or power of attorney or voting-paper charged with tlie duty of Id. is not
to be stamped after the execution thereof by any person.
(3.) Every person who makes or executes, or votes or attempts to vote, under or
by means of any such letter or power of attorney or voting-paper, not
being duly stamped [and with stamp properly cancelled ; see s. 8 of
Stamp Act, 1891], shall incur a i^enalty of £50, and every vote given
or tendered under the authority or by means of any such letter or power of
attorney or voting-paper shall be void.
Most proxy instruments appoint a proxy for one meeting only, and accordingly
require a Id. stamp.

" In any other case," e.g., when the proxy is appointed for more than one meet- When 10s.
ing or for a year, a 10s. stamp must be impressed. Stamp Act, 1891. stamp re-

Where an adhesive stamp is used, the common postage and inland revenue stamp 1^^^ *
is of the right description. An impressed stamp is much to be preferred to an ^^^I'^^cter of
adhesive stamp, for if the former is used the document has merely to be signed, but
if an adhesive stamp is used there is considerable danger that it will not be can-
celled, or vrill not be eft'ectually cancelled, and in such case the instrument is void,
and any person attempting to vote under it is liable to a heavy penalty.



624



VOLUNTARY WINDING-UP.



Cancellation
of stamp.



Blanks.



Wlio may
vote on poll.



In order to cancel the adhesive stamp, the person signing the instrument should
write his name or initials on or across the stamp, and j^ut the true date of signature on
the stamp. The stamp will not avail unless he does this, "or otherwise effectively
cancels the stamp and renders the same incapable of being used for any other instru-
ment, or for any x^ossible purpose." See Stamp Act, 1891, s. 8. It is safer to put
the initials and date. A mere cross or mark would not render the stamp incapable
of being used, e.g., for a receipt.

In many cases the instrument concludes : "As witness my hand this of ,"

and the stamp is fixed below and the signature written across it. It is generally
considered that this is an effective cancellation. See sect. 8 of the Stamp Act, 1891.

An instrument of proxy for one meeting (duty Id.) may be signed with a blank
for the name of the proxy or for the date of the meeting, and the blank may be
filled up by a duly authorised person before the instrument is used. Ernest v.
Zoma Gold Mines, (1896) 2 Ch. 572. The authority may be express or implied.
Sending the instrument to the secretary impliedly authorises him to fill up the
blank.

Upon important occasions the dii-ectors or some of the members sometimes send
out stamped proxy papers to the shareholders for signature.

The propriety of i^aying out of the comijany's funds for stamping and issuing
Buch proxies has been questioned. Studdcrt v. Grosvenor, 33 C. D. 528.

A shareholder may appoint several persons alternatively as his proxy, e.g., "A.,
and failing him B., and failing him C."

AU proxy papers ought to be preserved by the directors, and indexed.

Unless otherwise provided, a shareholder may vote personally at a poll, though he
was not present at the meeting at which the poll was demanded. If a shareholder
votes personally at a poU, any subsequent vote on the same poll by a proxy on
his behalf is void, but a vote by a proxy is not nullified by a subsequent vote at the
same poU by the appointor, unless the instrument is so framed that personal
attendance by the appointor invalidates it, e.g., where it says " i« my absence to
attend and vote," &c.



ADJOUENMENT.

Power of The regulations generally empower the chairman to adjourn a general meeting

chairman. Mnt^x the sanction thereof, and very commonly pro^-ide that no poll shall be demanded

upon a question of adjovirnment, or that if a poll is demanded upon any question of

Poll as to adjournment, it shall be taken at the meeting and without adjournment. In the

adjournment, absence of any such provision it would seem that a poll may be demanded on the

question, and shoiild be taken then and there. Chillington Iron Co., 29 C. D. 1.59.

Notice of Unless the regulations otherwise provide, no notice need be given of an adjourned

adjourned meetin«>', for as regards notice it is, in point of law, considered a continuation of

meetmg. ^^^ original meeting {Scadding v. Lorant, 3 H. L. 418) ; but no business can be

transacted thereat other than the business for which the origmal meeting was

Deposit of convened. Where a meeting is adjourned, and at the adjourned meeting a poll

proxies. j^ demanded, the question sometimes arises whether a clause requiring the deposit

of the instrument of ^n-oxy before the meeting (see Clause 50 of Table A.) is satisfied

by the deposit being made before the adjoiu-nod meeting.

In such a clause the word " meeting" is capable of two constructions. It may
refer to the original meeting ; or it may mean meeting in the popular sense, that is,
"meeting, whether original or adjourned." Now, the rule is, that where there is
an ambiguity, and one construction would be absurd and capricious in its results,
and the other reasonable, the latter is to bo preferred. If the first construction is
adopted, a member who is present by proxy at the original meeting can attend in



NOTICES FOLLOWING KESOLUTION.



625



person at the adjourned meeting, whereas a member who is present in person at the
original meeting cannot attend by proxy at the adjourned meeting. This seems
absurd and caijricious, but the second construction involves no such absurdity and
is reasonable. The object of the provision is to allow the directoi's time to examine
the proxy papers before the meeting, and either construction secures this object.
It is probable that the Court would be disposed to support that construction which
would facilitate voting, more especially as the clause is generally associated with
another clause which is expressed in general terms, namely, that "votes may be
given either personally or by proxy."

A chairman has no power prematurely to dissolve a meeting. See Xational Premature
BwelVmcjs Society v. SijT<cs, (1894) a Ch. 159. dissolution.

On the other hand, where the regulations provide that the chairman may, with Adjourned,
the consent of the meeting, adjourn, he has a discretion, and is not bound to
adjourn when the resolution for adjournment is passed. Salislurij Gold v. Haythorn,
13 T. L. R. 272, P. C.



Commencement of Voluntary Winding-up.

Sect. 130 of 1862. — A voluntary winding-up shall be deemed to commence at the
time of the passing of the resolution authorizing such winding-up.

Incase of a special resolution, the resolution is "passed" at the confii-matory
meeting. Dawes' Case, 6 Eq. 232 ; Weston'' s Case, 4 Ch. 20.

The Coui't cannot alter the date of commencement. West Cumberland Co., 40
CD. 361,

Notices following Resolution. Form 707.

In the matter of the Coy, Limtd. Notice for

At an extraordinary general meeting of the above-named coy, duly gpgcial reso-

convened, and held at , on the da}' of , the following lution to

sjiecial resolution was duly passed, and at a subsequent extraordinary ^'

general meeting of the members of the sd coy, also duly convened, and
held at the same place, on, &c., the following resolution was duly con-
firmed, viz.: — "That, &c." [_set it out].

\If the resolution does not purport to ajjpoint liqrs, add : And at such

last-mentd meeting , of , was appointed liqr for the purposes

of the winding-up.]

Dated, &c. , Chairman.

Notice of the special resolution or extraordinary resolution must be given by Notice for
adverti.sement, as respects companies registered in England in the London Gazette, Gazette.
as respects companies registered in Scotland in the Edinburyh Gazette, and as
respects companies registered in Ireland in the Dublin Gazette. Sect. 132 of 1862.

The notice for insertion in the Gazette must be signed by the chaii-man of the Signature by
meeting at which the special resolution was confirmed, or at which the extraordinary chairman,
resolution was j)assed, as the case may be. His signature must be attested by a
witness.

All advertisements purporting to be issued in pm-suance of statutes or under Other re-
orders of the Court, unless signed by au official of Court aud sealed, should be quireracnts.
signed by a solicitor of the Supreme Court. Queen's Printers' Dii-ections, 1891.
P. S S



626



VOLUNTARY WINDING-UP.



As a general rule, 'where the witness to a signature is a solicitor whose name
appears in the current Law List, no further evidence for insertion is required ; but
the Gazette officials reserve the right of calling for a statutory declaration in any
case where they may deem it necessary.



In the matter, &c.
At an extraordinary general meeting of the members of the ahove-
named coy, duly convened, and held at , on the day of ,



Form 708.

Notice for
Gazette of

extraordinary fj^e followino' extraordinary resolution was duly passed : —
resolution to * '' "^ ^

wind up.



" That it has been proved, &c., and at the same meeting -
, was appointed liqr for the purposes of such winding-up."

Dated this day of .

, Cliairman.

As to this notice, and its authentication, see last form.



of



Form 709.

Notice to
registrar of
resolution to
wind up.



Copy of
special reso-
lution for
Registrar of
Joint Stock
Companies.



The



Coy, Limtd.



At extraordinary general meetings of the above-named coy, duly

convened, and held resply o^ the of and of , the

subjoined special resolution was duly passed and confirmed.

"That," &c. [set it out\

J Chairman.

A copy of every special resolution must be printed and forwarded to the Registrar
of Joint Stock Companies (to be recorded by him) within fifteen days from the date
of the confirmation of the resolution, penalties being imposed for default. See
sect. 53 of 1862.

Although the Act does not in terms so require, it is usual and expedient to file
with the Registrar of Joint Stock Companies a formal notice of the passing of an
extraordinary or any other resolution for winding up a company.



Removing Liquidator and Filling up Vacancies.

Meetings mav ^^ '^^ calling meetings to fill up vacancies in the office of liquidator, see sect. 140
fill vacancies, of lcSG"2.

When the company is insolvent, the Coui't should be asked to fill up any vacancy.
Power of As to the power of the Court to fill up vacancies, see sect. 141 of 1862.

Court. The Court may appoint, under sect. 141, cither on the removal or retirement of a

liquidator. Sheppey Portland Co., W. N. (1892) 184.

As to "the Coui't," and how applications to it are made, see infra, notes to
Form 749.
How appli- The application under sect. 141 is by petition or motion, or, if the judge shall

cation made, so direct, by summons at Chambers. R. 51 of 1862.

Under the new practice, the application is by originating summons, and the
scaling of the summons amounts to a direction of the judge within the rule.
Grounds for ^^ ^° *'^'° principles on which the Court acts in removing a liquidator, see Sir

removal. John Moore Co., 12 C. D. 326 ; Oxford Building Socictij, 49 L. T. 495 ; Re Adam

Eiiton, :36 C. Div. 299 ; Section I., Chap. L.

Misconduct will justify removal, and so may the existence of interests or con-



ACCOUNTS OF LIQUIDATOE. ^>27

nections ■wliich may be in conflict, or may be likely to interfere with the pei*forra-
ance of his duties, and tlie fact that removal -will, in the opinion of the Court, be
for the benefit of the ■v\inding'-up in a large sum ■will amount to " due cause
shown."

Where three or more liquidators aro appointed, and one dies, it is apprehended Vacancy,
that the continuing liquidators (being two or more) may act notwithstanding the
Tacancy. Sects. 140 and 141 are not imperative as to filling xip vacancies, and
sect. 133 (b) of the Act of 1862 negatives any inference of joint confidence in all.
Me Alma Co., 16 Ch. D. 681 ; Farwell, 457.

Upon the peton of K., of , preferred, &c., and upon reading, Form 710.

&c., and it appearing- from the afft of the sd K. that J., the liqr of the Order
sd coy, is out of the jurisdiction, and this Ct dispensing with service removing
of the sd peton upon the sd coy, Order that the sd J., the liqr of the ^^^
sd coy, be removed from his office of liqr of the sd coy ; And appoint
the petr K. to he liqr of the sd coy in the place of the sd J. ; And order
that the sd J. deliver up to the sd Iv. all the ppty, cash, books of
account, and papers in his possession belonging to the sd coy. Main
Print'inc/, S^-c. Co., HaU, V.-C, 13th Dec. 1878. B. 2171.

Upon the applicon by originating summons, dated, &c., of F., of, Form. 711.



&c., a contributory of the above-named co}^, and iipon hearing the Removal of
solors for the applicant and for T., one of the respts to the sd summons, oue liquidator
and no one appearing for P., the other respt to the sd summons, mentof the
although duly served with the sd summons in pursuance of the order other,
for substituted service thof, dated, &c., and upon reading the sd
originating summons, the London Gazette, dated, &c., the afft of, &c.,
It is ordered that P., who is a liqr of the above-named coy jointly
with the sd T., be removed from his office of liqr of the sd coy ; And
the Ct doth hby appoint the sd T., of, &c., sole liqr of the sd coy ;
And it is ordered that the sd P. do deliver up to the sd T. all the ppty,
cash, books of account, and other papers and documents in his posses-
sion, custody, or power belonging to the sd coy ; And it is ordered
that the costs of the applicant of this applicon be paid out of the
assets of the sd coy. London Steam Shipjnng Co., 00155 of 1892.
Eeg. 15th Dec. 1892.

Sometimes the order runs thus : — And it is ordered that the costs
of this applicon be taxed and pd in the first instance out of the assets
of the sd coy, and that the amount so pd in respect of such taxed costs
be repaid by the sd (old liqr) to the sd (new liqr) as afsd. Leeds
Estates, 8fc. Co., 00174 of 1893. Eeg. 30th June, 1893.

Books and Accounts to be kept by Liquidator.

The liquidator must keep proper books of account, showing all receipts and Account
payments made by him in the com-se of the liquidation. He should also keep a

s.s2



628

Diary.



Eecord of
notices.



Final
account.
Order to
bring in
account.



VOLUNTARY WINDING-UP.

diary or miniite-book, containing notes of all his transactions and negotiations in
relation to the winding-up, and books showing the dates at which all notices to
creditors and shareholders are sent out and posted, and by whom the same were
posted. Such last-mentioned persons should initial the entries or the summary
thereof, so that if it becomes necessary to make an affidavit as to the service of any
notice or circular, the person who directed the notice and posted it may be able to
swear to the facts after refreshing his memory by referring to the book.

As to the final account, see {infra) "Final Meeting."

The order in the next form was made in a case where a voluntary winding-up
was superseded by a compxilsory order, but the Court can at any time, upon an
application under sect. 138 of the Act, order the liquidator to bring in and vouch
his account. Wrighfs case, 5 Ch. 437. The proceedings upon the order are like
those in a compulsory winding-up under the old practice. However, such orders
are only made in special circumstances, e.g., upon the liquidator's application, or
where improper conduct is shown.

The procedure is stated in Section III.



Form 712.

Order to bring
in account of
liquidator.



Upon the applicon of M., the off liqr, &c., and upon hearing the
solors for the petrs and for the sd off liqr, and for H., the late volun-
tary liqr of the sd coy, and the sd H. hby submitting to the jurisdic-
tion, and upon reading an order dated 25th July, 1876, It is by
consent of the sd H. ordered that the sd H. do forthwith, or within
seven days after service upon him of this order, lodge in the chambers
of the judge his account of receipts and disbursements on behalf of
the sd coy as such voluntary liqr. Manor Silkstone Coal Co., Malins,
V.-C, 19th March, 1877. B. 623. See also Form 714.



of 1890.



Form 713. Upon the applicon of H., the liqr of the above coy, upon hearing

Libertv to ^^^ solors for the applicant, Order that the applicant be at liberty to
liquidator to leave and p)ass in the chambers of the judge his account as the liqr of
iSracco^^t?'' *^*^ above-named coy. Kay, J., 20th June, 1884. A. 869.

Accounts Under sect. 15 of the Companies Winding-up Act, 1890, if the winding-up is

under sect. 15 not concluded within a year, the liquidator must at prescribed intervals send to
the Registrar J. S. C. a statement containing particulars with respect to the pro-
ceedings. In case of default he is liable to a penalty. If it appears from any such
statement or otherwise that any liquidator has in his hands or under his control any
money representing assets of the company which have remained unclaimed or
undistributed after the date of their receipt, he must forthwith pay the same to
the companies liquidation account at the Bank of England, or he will be proceeded
agaiust by the Board of Trade.

The section applies to voluntary winding-up. Stock and Share, 6;c. Co., (1894) 1 Ch.
736. But it is not enforced with the same strictness when the accounts required
by the Act of 18G2 have been properly furnished.

The procedure is the same as in the case of a compulsory winding-up, and is
stated in Section I., Chap. XXIV.

It is to be observed that sect. 15 of 1890 only applies to an existing liquidator ;
it does not touch an ex-liquidator. Accordingly, there may be cases in which an
order as follows may be requisite.



dators leave
accounts.



REMUNERATION OF LIQUIDATORS. 629

Upon the aj)plicou of E., tlio liqr appointed to conduct the voluntary Form 714.



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