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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inconvenience may ensue.

Second Part. — Debts and claims which ought to be proved by the
creditors. The columns are like those in Form 724, omitting the last
two.

When the time limited by the above notice has expired, the liquidator should
make out a list, as above, of the claims sent in, and of all other debts and claims
of which he is cognisant.

The liquidator should investigate all claims sent in, and he should ascertain as
far as ho is able which of the debts and claims are justly due from the company.

Ah to the debts and cliiims provable in a winding-up, the right of proof is very
extensive. Sec sect. 158 of the Act of 18G2 ; sect. 10 of the Judicature Act, 1875 ;
and Section I. Cliap. XXXVII.



CREDITORS.



637



{Title as in Form 724.) Form 725.

Sir, — The debt claimed by you in this matter has been allowed by i^~[~^^f

me, at the sum of 1. \_If part only allowed add, If you claim to allowance of

have a larger sum allowed, you are hby required to come in and prove
the further amount claimed, ^'c, as in next Form.~\

I am, ike,
To Mr. P. E. A. B., Liqr.

The liquidator usually sends the above notice when he is satisfied as to any par-
ticular claim.

{Title as in Form 724.) Form 726.

You are hby required to come in and prove the debt claimed by you ^^^^^^ ^^
against the above-named coy, by statutory declaration and by the pro- come in and
duction of proper vouchers, and you are requested to attend my office, P^*^'*'^-

situate, &c., on the day of , 189 — , at o'clock in the

noon, being the time appointed for the further hearing of the

claim.

Dated this day of , 189 — .

To Mr. E. S. T. A. B., Liqr.

If the liquidator is not satisfied as to any claim, he should, by notice as above,
call on the claimant to prove it by furnishing particulars and vouchers, and making
a statutory declaration as in the next form.

{Title as in Form 724.) Form 727.

I, S. T., of, &c. solemnly and sincerely declare as follows : ^ir~i Z

' ' ' '' "^ Declaration

1. The above-named coy was, on the day of , 189 — , the by creditor in

date of the order for winding-up the same, anel still is, justly and truly support of
indebted to me in the sum of £ for, etc. \_Describe shortly the

nature of the debt, and exhibit any security for it ; and in the case of a
trade debt exhibit a bill of parcels, and verify the reaso?iabletiess of the
charges, as in jjroving a debt in a suit.^

2. I have not, nor hath, nor have any person or persons by my
order, or to my knowledge or belief, for my use received the sd sum

of £ or any part thof, or any security or satisfaction for the

same or any part thof \if any security, add~\, except the sd [describe the
security~\ hnbfre mentd or referred to.

And I make this declaration conscientiously believing the same to
be true, and by virtue of the Statutory Declarations Act, 1834.

Declared, &c.

On the part of A., of , the liqr of the above-named coy, that it Form 728.

may be determined whether the claim against the sd coy of B., of Summons for

[or of the several persons whose names and addresses are set adjudication

forth in the second and third columns of the schedule hereto], ought giai^^ °
or ought not to be allowed by the applicant [or that it may be deter-



638



VOLUNTARY WINDING-UP.



Form 729.

Order for
inquiry as to
creditors of
company.



mined and declared tliat B., of , is not entitled to prove as a

creditor of tlie coy for 2,000/., the amount specified in tlie claim Bent in
Ly him, or any part tliof, and that the sd B. may be ordered to pay
the costs of this applicon].

See notes to Form 723.

If the liquidator is not satisfied as to any claim, he should either endeavour to
eifect a compromise, and get it properly sanctioned [Chap. XLVII.], or he can leave
the claimant to bring an action, or he can apply to the Court to adjudicate on the
claim. The last-mentioned is the course very commonly adopted, and sometimes
one application is made as to several claims.

Upon the applicon of liqrs of the ahove-named coy, by summons,
dated 19th March, 1873, and upon hearing the solor for the liqrs, and
reading the afPt of C, filed, &c. Order that an inquiry be made what
are the debts of the sd coy, and the sd judge doth hereby fix the 1st
Sept. 1873, as the day on or before which the creditors of the sd coy
are to send their names and addresses and the particulars of their
debts or claims, and the names and addresses of their solors (if any)

to Mr. S., of , London, the solor for the sd liqrs of the said coy.

And let such creditors, if so required by notice in writing from the sd
liqrs by their solor, come in and prove their sd debts or claims at the
chambers of the sd judge, at such time as shall be specified in such
notice. And order that in default thof such creditors be excluded
from the benefit of any distribution made before such debts are proved.
And order that for the piu'pose of carrjdug out this order, such ad-
vertisements be forthwith issued in such newspapers as the judge shall
direct. Eclipse Gold 3Iinm(/ Co., Malins, V.-C, 27th March, 1873.
A. 3038.

In some cases, e.ff., where there is likely to be a large number of disputed claims,
an order as above relieves the liquidator from much responsibility, and the wind-
ing-up may be expedited. The proceedings on such an order -will be similar to
those in a compulsory winding-up under the old practice, and when the registrar
has made his certificate, the liquidator can declare and pay dividends and pro-
ceed with the winding-up either with or without further application to the Court.



Form 730.

Order for
account of
debts.



Upon the applicon of H. and M., liqrs of coy, and upon hearing the
solors for the applicant, and reading the London Gazette dated 22nd
March, 1881, containing the advertisement of the appointment of
applicants as such liqrs, Order that the following account be taken,
that is to say, an account of the debts or claims against the said coy.
Britannia Fire Ass., M. E. 28th March, 1881. A. 538.



Form 731. Upon the applicon of W., the licpof the association, and upon hoar-
Order fixing ing the solors for the applicant, and reading the Londoti Gazette dated

tiinc for 22nd March, 1881, containing the advertisement of the appointment of

claims. . .

the applicant as such liqr, Order that the creditors of the above asso-



CREDITORS.



639



ciation on or about tlie 1st Juno, 1881, do send their names and parti-
culars of tho debts and claims to the applicant as sueli'liqr as afsd.
And order that the advertisements for such creditors be inserted in tho
newspapers specified in the first column in the schedule of the second
part, and do appear in each such ncAvspapor tho number of times
specified in the second column of such schedule. Britannia Fire Ass.,
Bacon, V.-C, 6th April, 1881. A. 688.
This form will not bo now often required.

{Tide as in Form 724.) Form 732.

I, — : — , of , the liqr of the above-named coy, hby certify that ^ ' 7"

the result of my examination upon debts and claims against the above- debts and
named coy, brought in pursuance to the advertisement issued in that claims.

behalf, dated the day of , 1 89 — , so far as such examination has

up to the date of this certificate been proceeded with, is as follows : —

The debts and claims which have been allowed by me are set forth
in the first schedule hereto, and with the interest thereon and costs
mentd in the sd schedule, are due to the persons therein named, and
amount altogether to 1.

I have in the first part of the sd schedule set forth such of the sd
debts and claims as carry interest, and the interest thereon has been

computed after the rate they resply carry down to the day of

[the commencement of the winding-up of the sd coy].

{The ivords in hracJcels are alicays inserted when the coy is insolvent.)

I have in the second part of tho sd schedule set forth such of the sd
debts and claims as do not carry interest.

The claims set forth in the second schedule hereto have been brought
in by the persons therein named, and have been disallowed.

The several persons who are named in the third schedule hereto
have brought in claims, but such claims have not as yet been allowed
or disallowed by me. \_And add third schedule accordingly .'\

The First Schedule above eefereed to.
First Part. — Debts and claims which carry interest.



No.


Names of
Creditors.


Addresses and Descriptions.


Particulars of Debt.


Total due.


1


J. L.


29, Street, London,

stationer.

Principal

Interest at £ j)er cent, per

annum (less Property Tax)

from , 1892, to the date

of the commencement of the
winding-up


On Bill of Exchange,

dated, &c

&

£
£


£ s. d.




Costs of proof






Total first part..£





640



VOLUNTARY WINDING-UP.
Second Part. — Debts and claims wliicli do not carry interest.



No.



40



Names of
Creditors.



W. P.



Addresses and
Descriptions.



15, St., London,

coal merchant.



Principal ....
Costs of proof



Particulars of
Debt.



Goods sold.

£50
2



Interest on Principal
(less Property Tax).



Total due.







£ s. d.



54



Totals.. £

Add total first part £

Total first and second parts £



The Second Schedule above referred to.



No.


Names of Creditors.


Addresses and Descriptions.


Particulars of Claim.


Amount claimed.










£ s. a.



Dated this



day of



189-



G. H., IjIi.



qr.



The utmost care should be taken in the above form that each creditor is given the
serial number assigned to him in the list. (Form 724.)

And the names in each division must stand in strict alphabetical order according
to the surnames. Cast up the amounts specified in the first and second parts
of the fii'st schedule, but not those in the second schedule. The totals of the
first and second parts of the first schedule have to be inserted in the certificate.

A liquidator should facilitate in every way an application to the Court to
adjudicate on disputed claims, and should, if and when so advised, take out a
summons to obtain such adjudication.



Form 733.

Order for

better par-
ticulars of
claim, and
cxtoiidiiig
time for
evidence.



Upon tlie applicon of tlie liqr (voluntary), and upon hearing the
solors for the applicant, and for S., It is ordered that the sd S. do,
within seven days after the service of this order, deliver to the applicant
f urtlier and Letter particulars, with dates and items of the claim of the
sd S. in this matter. And it is further ordered that the time within
which the applicants arc to file evidence in opposition to such claim be
extended to twenty-one days after such further and better particulars
are delivered, and that the time witliiu which the sd S. is to file
evidence in reply be extended for seven days after the evidence in



DIVIDENDS TO CREDITORS.



641



ojiposition has been filed. And it is furtlier ordered that tlic costs of
tliis applicon be costs in the sd claim. Retford Wagon Co., M. R.,
18th May, 1878. No. 1020.



Upon the applicon of A. and B., the voluntary liqrs of the above- Form 734.



named coy, by originating summons, dated 22nd May, 1891, and upon Order ou
hearing the solors for the applicants and for the respondents C. and D., ori{,nn;iting
and upon reading the afft of N., filed 16th June, 1891, and the several disallowing

affts of, &c., all filed, t&c, and the afft of , filed, &c., as to service claims.

of the sd originating summons upon the following respondents, viz., &c.,
and the certificate dated 7th Aug., 1891, that no appearance has been
entered for the last mentd resj^ondents. It is ordered that the claims of
the several respondents set forth in the schedule hereto for the several
amounts set opposite the names of the sd respondents in the fourth
column of the schedule be disallowed as against the above-named coj.
Durham and No)-th Yorkshire Steam Caltiration Co. (1891, D. 916),
Chitty, J., 11th Aug., 1891. A. 1349.

See the note to Form 751.



In the matter, &c. Form 735.



I, , of , the licp- of the above-named coy, do hby declare a Declaration

dividend at the rate of shillings in the pound upon the amount of of dividend.

the respve debts of the creditors of the sd coy whose names and the
amount of whose debts are set forth in the schedule hereto.

Dated, &c.

Liqr.



The Schedule above referred to.

[/« this set out in columns (1) names, (2) addresses, (3j amounts of
debts.']

When the liquidator has in hand sufficient funds after providing for secured
creditors, and the list of debts and claims has been settled or nearly settled, he will
declare a dividend to be paid to the creditors whose claims have been allowed. In
determining the amount, he will see that he retains funds or assets sufficient to
cover all pi'obable costs and expenses of the winding-up, and to pay a like dividend
on all outstanding claims. The liquidator will declare the dividend by instrument
in writing, which may be as above.

Sometimes the liquidator obtains the sanction of the Court to his declaring a
dividend.

A dividend having been declared, notice will be given to the creditoi-s and pay-
ment made accordingly. See next form.

P. T T



642



VOLUNTARY WINDING-UP.



Form 736.

Notice that
dividend is
ready for
payment.



Sir,



{Title as in Form 724.)



Upon applicon at my office, No.



on and after the



instant,



between the hours of 10 and 4 o'clock, you may receive a cheque for

\_state nature of payment, e.^.,] the amount of your debt allowed

in this matter, viz., 1., or 1., being a dividend at the rate of

5s. in the £ upon the amount of your debt allowed in this matter, viz.,

1., or /., being a dividend payable to you as a contributory of

the above coy.

If you cannot attend personally the cheque will be delivered to your
order upon your filling up and signing the subjoined form.

Dated this day of .

I am, etc.,

To Mr, . , Liqr.



Sir,

Please deliver to
letter.



roR:M: OF Oeder.
the cheque for 1, referred to in the above



Or.



Please send me by post the cheque, etc.
To Mr. , liqr of the Coy, Limtd.



Dated this



day of



-, Signature.



Contributories.

By sect. 133 (8) of 1862, the liquidators may exercise the powers of the Court as
to settling the list of contributories, and any list so settled is prima facie evidence of
the liability of the persons named therein as contributories. See sects. 38 and 74 of
1862, and Section I., Chap. XXXIX.

When the assets of a company in hand and readily realizable are not sufficient to
pay off all the debts and liabilities and the costs of winding-up, the liquidator
will have to make calls on the contributories in respect of the shares held by them
on which there is any liability to pay. In view thereof he should, as soon as he
sees that there is any likelihood of such calls being required, prepare and take the
necessary steps to settle a list of contributories. See Form 737.



Form 737.

List of con-
tributories.



In the matter of the Cos Acts, 1862 to 1890,

and

In the matter of The Coy, Limtd.

List of Conthibutories of the above-named Company.

The following is a list of the contributories, &c.

[77i!e rest of the form, including the schedules, may follow Form 45 of
18'JO. See Ponu 498.]

Tlic; usual entry in the iifth cohiiiin of the first part is, " As a present member,"
and in tin- fit'lh cDliuun of tiie second puit, "As the executor of A. B., deceased,"



CONTK'[ 151 ■ T( )KIlvS. t)4cJ

or "As the a(lniinistrator of A. B., deceased," or "As the trustee in bankruptcy of
C, a member."

Take care that the serial number once ass'igned to a contributory is always
assigned to him throughout the proceedings.

The names, addresses, and descriptions contained in the company's register of
members should be accurately transcribed. " Care of" is a sufficient address, if so
entered in the register.



(7'/V/e as in Form 737.) Form. 738.

Take notice that A. B., the liqr of the above-named coy, has j^otice to con-

appoiuted the day of , at o'clock in the [fore]noon at tributories.

his office [No. — , Street, in the City of London] to settle the list

of contributories of the above-named coy, which has already been
made out by him, and that you are included in such list in the
character and for the number of shares [^or extent of interest] stated
below ; and that if no sufficient cause is shown by you to the contrary
at the time and place aforesaid, the list will be settled by the sd liqr
including jou therein.

Dated the • day of .

A. , Liqr.

To Mr. .

The Schedule [«s in last For7n'].

The above form is almost identical with Form 499, which is used in a compulsory
winding-up. Either form may be used.

It is usual to fix a day for settling the list, and to give notice thereof to the con- Settling list.
tributories, as in Form 738 ; but it is not essential so to do. Brighton Arcade Co. v.
Bowling, L. E,. 3 C. P. 175, 187.

At the time appointed the liquidator should attend at the place specified in the
notice, and hear any objections made by the parties who object to being placed on
the list, and should either then and there decide as to such objections under the
advice of his solicitor, or should adjourn the case for further consideration. As
to who should be on the list, see Chap. XXXIX. When the list has been settled
altogether or in jjart, the liquidator very commonly signs a certificate, which
should now, as nearly as may, follow that used by the liquidator in a compulsoiy
winding-up. (See Form 501.)

It is a common practice to settle the list of contributories so far as regards all How list
undisputed claims, and then to set out in a third part of it a list of all the disputed settled,
claims, with an explanatory note to the effect that they are in dispute, and that the
liquidator has not yet fully investigated them. Then when the liquidator has
settled the list, save as regards certain disputed cases, he can settle either the
pei'sons who dispute their liability on the list, and leave them to apply to the Court
to strike tlieir names off, or he can himself apply to the Court for a declaration that
they should be placed on the list for the shares specified. When the liability of
only one person as contributory is in question, the proper practice is to place
him on the list, and leave him to apply. Cornicall Brick, ^-c. Co., (1893) W. N. 9 ;
37 S. J. 214. But when the liability of a class of persons is in dispute it may
be cheaper and more convenient for the liquidator to apply for a declaration of
liability. But even when a claim for a declaration is allowed, the summons ought
not to ask for an order for payment. (See E. J. Wragg, Limtd, AV. N. (1896) 166.

rp np O



644



VOLUNTARY WINDING-UP.



Application
to Court.



Form of
sununons.



Altering
status.



If a third schedule is inserted, the following paragraph should be added to the
certificate : —

"The several persons whose names are set forth in the third schedule hereto are
alleged to be contributories of the company, but I have not yet concluded the
consideration of their cases."

In the above form each contributory must have the serial number originally
assigned to him in Form 737, and the names in each division must be in strict
alphabetical order, according to surnames.

As regards the third schedule, it is desirable to keep the disputed cases in view,
e.ff., so that when a call is proposed it may be seen that the disputes, even if settled
in favour of the liquidator, would not reduce the call.

It is a common practice, where a fully paid-up shareholder desires not to be
placed on the Ust, to omit the name altogether. Anderson'' s case, 7 Ch. 7').

A contributory who objects to his name being placed on the list can apply to the
Court to rectify the register of members, or the list of conti'ibutories, or both, or he
may wait till a call is made on him, and proceedings taken to enforce the same, and
then resist.

If there are many disputed cases, the liquidator sometimes applies to the Court to
settle the list, or applies as regard the cases in dispute. In the former case the
liquidator takes out a summons that the list of contributories of the company may
be settled by the Coiu"t, and that all proper inquiries may be made, and directions
given for that purpose, and the subsequent proceedings will be similar to those in
a compulsory winding-up. See Chap. XXXIX.

If the dispute is only as to a single person or a few persons, the summons will be
"that the following question may be determined, namely, whether A. B. is or is

not a contributory in respect of , or how many shares of 1, each in the

capital of the company, " or " that it may be declared that the liquidator of the
above-named company is entitled to settle A. B., of , upon the list of contri-
butories of the company in resj^ect of shares of 1, each, numbered to

both inclusive, and upon each of which shares the sum of 1, and no more

has been paid up."

However, in most cases the liquidator settles the person disputing on the list,
and leaves him to litigate the matter by applying to the Court, or by resisting
proceedings to enforce a call.

Applications by contributories to have their names removed from the list are
common ; they are usually made by motion or summons, the latter being the form
of application which is approved by the judge.

The power of a voluntary liquidator under sect. 131 of 1862 to sanction a transfer
of shares made after the commencement of the winding-up, involves the power to
alter the register of members ; and the transferor is thereupon released from the
liability which he was under at the commencement of the winding-up to contribute
as a present member, and the tiausferce alone is the person to be placed on the A.
list.

Where successive transfers are sanctioned by the liquidator under sect. 131, the
ultimate transferee only is liable to contribute as a present member, the transferor
and prior transferees being liable as past members. National Bank <if Wales, (1897)
1 Ch. 298.



Making call.



Calls.

See sects. 133 (9) and 134 of 1862.

Wlien the liquidator lins .^rttled the list of coiitributorics he will jiroccod forth-
with to make a call on the contributories so far as m;iy bo necessary. Whore there



CALLS. 645

is a considerable amount to be called up he may think it best to call it up by
degrees, but where it is clear that the whole amount will have to be called up he
should, as a general rule, make a call of the full amount unpaid on the shares held
by the contributories, and send out notices accordingly.

Sometimes the liquidator before making a call sends out notice that he proposes Notices,
to make a call, and fixing a time and place at which he will consider the matter,
and within the time mentioned he can consider any objections made. A call, if and How call
when the liquidator determines to make it, will be made by instrument in writing m^de.
under his hand fscc Form 739), and notice of the making of the call should forthwith
be sent out to the contributories. Sec Form 740. Those contributories who do not
pay should be given further notice that unless they pay forthwith the liquidator will
apply to the Court. Subsequently the liquidator should apply by summons to the Order for
Court for an order against all defaulting contributories, compelling them to pay the payment,
amount due with interest. Such orders are very frequent, and can be readily
enforced by execution.

If the amount recoverable from the contributories settled on the A. list will not B. li.^t.
suffice to pay the debts and costs of winding-up, it will be necessary to settle the B.
list of contributories. This will include those persons who ceased within one year
before the commencement of the winding-up to be members and their representa-
tives. See Section I., Chap. XXXIX.

A general meeting, under sect. 139, may appoint directors and sanction their Calls by
making calls. LadcVs Case, (1893) 3 Ch. 4.50. A call may be made in pursuance of du-ectors.
an agreement to amalgamate. Xcio Zealand Co. v. Pcacocli, (1894) 1 Q. B. 622. Or
in pursuance of an agreement for the sale of the assets to another company. Bank
of South Australia (2), (1895) 1 Ch. 578.

In the matter, &c. Form 739.

I, the undersigned , of , the liqr of the above-named coj,

do hereby make a call of 1, per share uj)on all the contributories

of the sd coy [or upon the several j)ersons named in the second column



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 84 of 134)