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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A vacancy in the office of liquidator may, under sect. 140, be filled up by simple Vacancy in
resolution of a general meeting. office.

A meeting called under s. 139 may appoint directors and sanction the exercise by
them of the power of enforcing calls, and selling, transferring, and forfeiting
shares under the articles. LadcVs Case, (1893) 3 Ch. 450.

When summoning a meeting the liquidator should send out the notice to the How meet-
registered addresses of the members or contributories, or to their last-known places i^^o^ called,
of abode, and should state in the notice the object for which the meeting is con-
vened.

The Act does not make express provision for the calling of meetings of creditors Creditors,
by the liquidator, but it is usual when a company is insolvent to call an annual
meeting to explain the position of affairs, and also to call special meetings when



654



VOLIJXTAUV WINDING-UP.



Powers of

Court.



the liquidator desires to consult the creditors as to some important step in the liqui-
dation, €. g., a sale or composition or a proposal for reconstruction.

In addition to the above powei'S, the Court can, by the joint operation of sects. 91
and 138 of the Act of 1862, at any time direct meetings of creditors or contributories
to be held for the purpose of ascertaining their wishes as to 'any matter.



Form 749.

Order to
summon
meeting.



Upon the applicon of P., &c., Order that N., the liqr, do, within
four days after service of this order on him, summon a general meet-
in"- of the sd coy, as required by sect. 139 of the Cos Act, 1862 ; costs
of applicant and liqr to be i^d out of assets of bank as and when judge
shall direct ; such costs to be taxed. Northern Counties Bank, Chitty,
J. 18th Dec, 1884. B. 1712. \_Uncler supervision.'] ^eo Wright's case,
5 Ch. 437.



Who may
apply.



What ques-
tions deter-
mined.



What Court
has iuris-
diction.



General
Peactice.

Transfer of
applications.

General Order
of 1862.



Applications to the Court.

Sect. 138 of 1862, which occurs in Part IV. of that Act, enables "the liquidators
or any contributory of the company" to apply to the Court "to determine any
question arising in the matter of such [voluntary] winding-up, or to exercise all
or any of the powers which the Court might exercise if the company were being
wound up by the Court, and the' Court,' ' " if satisfied that the determination of such
question, or the required exercise of power, will be just and beneficial, may accede
wholly or partially to such application, on such terms, and subject to such conditions,
as the Court thinks fit, or it may make such other order " "as the Court thinks just."

Sect. 81 of 1862, which defined "the Coirrt," is repealed by sect. 33 of 1890,
and by sect. 32 (2) of 1890, " in Part IV. of the Companies Act, 1862, and in this
Act, the expression ' the Court,' when used in relation to a company, shall, unless
the contrary intention appears, mean the Court having jurisdiction under this Act
to wind up the company."

Therefore, when applications to the Court become necessary under sect. 138 of
1862, they will be made to —

(a) The High Court of Justice ;

(b) The Palatine Court of Lancaster or Durham ; or

(c) The County Court (not being a Court excluded from bankruptcy jurisdiction) ;
according to the situation of the registered office, and the amount of capital of the
company. See Section I., Chap. I.

Sect. 3 of 1890 seems to enable a transfer to be made, from one Court to another,
of any proceedings in a voluntary winding-up, and to empower a County Court
to state a sj^ecial case where an application to such Coiu't has been made in a volun-
tary winding-up.

E. 180 of 1890 provided that "the Rules contained in the General Order of the
Court (jf Chancery of 1862, and the forms prescribed by such rules shall, from and
after the commencement of these rules, cease to have effect or apply in the winding-
up of any company wound up under the order of the Court, when the winding-up
order is made after the 31st of December, 1890," thus leavmg those rules untouched
as regards voluntary winding-up, and winding-up under supervision.

E. 17 of April, 1892.— In all proceedings for the winding-up of a company under
the supcrvisitm of the Court, or the voluntary winding-up of a company to which
these rules apply (that is to say, where a petition for supervision order has been
presented, or where an application in the voluntary winding up of the company
has for the first time been made, on or after the 1st day of January, 1891, sec R. 1



Al'J'LICATIONS TO COUJiT. 655

of April, 1892), the rules contained in the General Order of the High Court of Chan-
cery, dated the 11th day of November, 1862, which relate to .such proceediugs,
shall, so far as applicable, be observed, subject to the following luodificatious : —

Expressions in the said order relating to the judge shall bo deemed to refer to the
judge of the High Court within the meaning of these rules.

Expressions in the said order relating to the chief clerk and the Chambers of the
judge shall be deemed to refer to the registrar and his office.

All orders shall be drawn up and filed in the office of the registrar in the manner
hereinbefore provided with reference to orders made on the compulsory winding-up
of a company, and R. 1 1 of these rules, relating to the filing of affidavits and other
documents in the registrar's office, shall apply to all such proceedings. [See also
E. 35 of April, 1892.]

But E,. 17 of 1892 comes under Part I. of the Rules of 1892, ivhich rehdcs only to Palatine and
"Procedure in the High Court." R. 178 of 1890 leaves the practice in a County County
Court and Palatine Court in regard to voluntary winding-up, "in accordance, as
far as practicable, with the existing rules and pi-actice of the Court in proceedings
for the administration of assets by the Court." As to the meaning of this rule in
the County Court, see Chap. LIII. The Rules of 1862 did not govern proceedings
in the County Coui'ts, which must follow the Act of 18G2, so far as it governs the
practice in voluntary winding-up, and adopt its own procedure with relation to the
rest of the practice.

Sect. 138 of 1862 is frequently made use of in a voluntary winding-up. It will
be observed that only the liquidator or a contributory can apply : a creditor cannot.
See Poole Firebrick Co., 17 Eq. 268 ; 43 L. J. Ch. 447. Apphcations imder this
section are to be by petition or motion, or, if the judge shall so direct, by summons
at Chambers.

R. 51 of 1862. — Every application under the 137th, ISSth, or 141st section of the How applica-
said Act shall be made by petition or motion, or, if the judge shall so direct, by tion made,
summons at Chambers; and every application under the 167th or 168th section of
the said Act shall be made by petition.

In all ordinary cases a summons is the proper form of application. See Re Generally
Whitehouse ^- Co., 9 C. D. 595 ; Wakefield Rolling Stock Co., (1892) 3 Ch. 165 ; and hy originating
many other cases in this work mentioned.

The summons must be an originating summons, and must be issued from, and
filed in, the office of the Registrar (Companies Winding-up), Room 66, Bankruptcy
Buildings, Carey Street, W.C.

Applications have, however, been made by petition {Anglesea Co., 2 Eq. 379 ; 1
Ch. 555 ; Australian United Co., W. N. (1877) 37), and by motion. Horbury, ^-c. Co.,
11 C. Div. 109 ; Gold Co., 12 C. D. 77 ; Union Bank of Kincjston-upon-Hull, 13 C. D.
808.

As to obtaining order giving general liberty to apply in a voluntary winding-up,
see notes to Forms 751 and 760 ; but see note to Form 751.

The following are some of the matters in regard to which axoplications are from Mattees
time to time made under sect. 138 of 1862 :— dealt with

Actions and Proceedings. — The liquidator can take and defend legal proceedings in ^^■'^^^

the name of the company under sects. 95 and 133 (7) of 1862, but occasionally, e.q., . .'

A-Ctions
where the matter involved is considerable, he applies for the sanction of the Court.

Sometimes a contributory applies for liberty to take proceedings in the company's
name.

Carrying on Business. — The liquidator can carry on the business of the company. Carrying on
so far as may be necessary for the beneficial winding-up of the same, without the lousiness,
sanction of the Court : sects. 95 and 133 (7) of the Act. But occasionally, in im-
portant cases, he applies for such sanction.



656



VOLUNTAEY WINDING-UP.



Borrowing.



Delivery of
books, &c.



Hestraining
actions.
Cnntribu-
tories.



Dividends.



Service.



Private exa-
mination.



Taxation.



3Iisfeasance.



Surplus
assets.



Staying
■winding-up.



Borrowing. — The liquidator can raise money upon the security of the assets. See
sects. 95, 133 (7). And the power is not uncommonly exercised, e.g., in order
to pay off secured creditors, to provide funds to carry on the business, &c. Occa-
sionally application is made to sanction the proceeding, as in a compulsory wind-
ing-up.

Delivery of Books, Papers, and Property. — Where a liquidator is unable to get pos-
session of the books, papers, or other property of the company, he not uncommonly
applies under sects. 100, 138, for an order for delivery. See Section I., Chap.
XXVII. Borhury Bridge Co., ubi supra.

Restraining Actions and Proceedings. — See Section I., Chaps. XXXIII. , XXXV.

Settling List of Contrihutories. — See Form 738.

Pectifying List.— See Section I., Chap. XXXIX.

Making and enforcing Calls.— See Forms 741 et seq.

Enforcing Payment of Belts due from Contrihutories. — See Section I., Chap. XXXIX.

liberty to declare and pay Dividends. — See Section I., Chaps. XXXVII. and
XXXIX.

Adjudication of Disputed Claims. — See Forms 728 et seq.

Compromises. — See Section I., Chap. XLVII., and stipra, p. 650.

Service. — Applications are sometimes made as to service out of the jurisdiction or
substituted service. See Section I., Chap. XIII.

Ex-aminatioti and Discovery under Sect. 115. — Such applications are not uncommon ;
they are usually made by the liquidator, especially with a view to proceedings under
sect. 10 of 1890. Gold Co., 12 C. D. 77. See Section I., Chap. XLIII.

Ta.xation of Costs. — See Section I., Chap. XLVIII. ; and Forms 762 et seq.

Inspection tender Sect. 156. — See Section I., Chap. XII. Applications under this
section are not uncommon.

Proceedings against Directors and others, under sect. 10 of 1890, are by no means
uncommon. See Gold Co., tibi supra, and Chap. XLV.

Adjusting Eights of Contributor ies. — Occasionally application is made to the Court
to determine the rights of contributories in the surplus assets. See Eclipse Gold
3Iining Co., 17 Eq. 491 ; and Anglesea Colliery Co., 2 Eq. 379 (on appeal, 1 Ch. 555),
in which case the application was by petition ; and Bridgeicater Navigation Co., 39
C. D. 1 ; Wakrjicld Rolling Stock Co., (1892) 3 Ch. 165; and New Transvaal Co.,
(1896) 2 Ch. 750, in all of which cases the apphcation was by originating summons.

Staying Winding-up. — Upon an apphcation under sect. 138, the power given by
sect. 89 of staying proceedings in the windiag-uj) may be exercised. The application
has sometimes been made by petition. South Barrule Slate Quarry Co., 8 Eq. 688 ;
Bog 3fining Co., 36 W. P. 347 ; and see Part I., pp. 825 et seq. But orders have
been made on motion. Condes Co. of Chili, 36 S. J. 593 ; Great Southern of Spain
Rail. Co., 00250 of 1894, 15 June, 1896. And an order has been made on an
originating summons by the liquidators. Coruna, Santiago and Peninsular Rail. Co.,
0215 of 1893 (Regr.), 1 August, 1893.



Form 750. {Title, as in Forms 1 to 5.)

T,,T ~ Take notice [as in Form 91.

IS otlCO of IP

motion. Dated tins day ot .

To, &c. Yours, &c. A. B., Solar for the applicant.

As to the practice on motions, sco Section I., Chap. II.



APPLICATIONS TO COURT. 657

{Title as 171 Form I.) Form 751.

Let [_^-9- C., of , the liqr of tlie above-named coy] witliin Foi-mal parts

eifflit days after service of this summons on him, inclusive of the °* summons

^ "^ , . . under

day of such service, cause an appearance to be entered for him to this sect. 138 of

summons which is issued upon the applicon of , of , in the ^°°2.

county of , [D., who claims to be a contributory of the above-
named coy] for an order that [or for the determination of the follow-
ing questions] [state nature of applicon~\.

This summons was taken out by , of , solors for the above-
named D.

The respondent may appear hto by entering appearance, either per-
sonally or by solor, at the office of the Registrar (Companies Winding-
up), Bankruptcy Buildings, Carey Street, London.

Note. — If the respondent does not enter appearance within the time
and at the place above-mentd, such order will be made and proceedings
taken as the judge (or registrar) may think just and expedient.

A 10«. companies winding-up stamp impressed. Preparation

No form of originating summons is given by the rules under the Act of 1890, and of summons,
therefore under R. 178 of 1890 the general practice of the High Court comes in.

E. S. C. 1883, 0. LIV. r. 4b (Aug. 1894).— An originating summons shall be in
the Form No. 1, A. or B. [from which the above form is prepared], or in the Forms
G. or H. [see Form 751a, i)ifra], Appendix K. to these Rules, with such variations
as circmnstances shall require. It shall be prepared by the applicant or his
solicitor, and shall be sealed in the Central Office [in voluntary liquidation, the
Registrar's Office, 66, Bankruptcy Buildings], and when so sealed shall be deemed
to be issued. The person obtaining the summons shall leave at the Central Office
[see above] a copy thereof, which shall be tiled and stamped in the manner required
by law.

A certificate that no previous proceedings in the voluntary winding-up have been
taken is not in practice required to be produced before the summons is sealed. But
see An. Pr., 1897, p. 974.

The summons must be served in the same manner as a writ of smnmons. An.
Pr., 1897, p. 973.

On the first originating summons in a voluntary winding-up the order may give
liberty to the liquidator or any contributory liberty to apply, in which case subse-
quent application may be made by ordinary summons.



[Title, as i)i last Form.) Form 751a.



Let all persons concerned attend at the office of the Registrar (Cos Ex pm-te
Winding-up), Bankruptcy Buildings, Carey Street, London, at the ongmatmg
time appointed in the margin hereof, on the hearing of an apj^licon

by [state nature of applicon^. This summons was taken out by

, of , in the county of , agents for , of &c., solors for

the applicant.

See R. S. C, 1883, O. LIV.. r. 4b, supra, and App. K., No. In.
P. U U



658



VOLUNTARY WINDING-UP.



Fixing time. R. S. C. 1883, 0. LIV., r. 4d (Aug. 1894).— The day and hour for the hearing of

an ex parte summons shall in the Chancery Division be fixed at the chambers of the
judge to whom the matter is assigned on production of the originating summons.



Form 752. {Title as in Form \?^

Prtecipe for Enter an ajDpearance for A. B., an alleged contributory [or as the

appearance to case may he~\ in the above matters. Dated the day of , 189 — .

summons." (Signed) X. Y., of No. — , Street, London, E.G. Whose address

for service is No. — , Street, London, E.G.

\If the address be heyond three miles from the Royal Courts of Justice,
an address for service tvithin three miles thereof must also be given.^

Agent for L. K., of , Solor for the sd A. B.

A 2s. impressed companies winding-up stamp.

The parties served with an originating summons shall, except as hereinafter pro-
vided, before they are heard, enter appearances in the [registrar's] oiiice and give
notice thereof. A party so served may appear at any time before the hearing of
the summons. If he appears at any time after the time limited by the summons for
appearance he shall not, unless the Court or judge shall otherwise order, be entitled
to any further time for any purpose than if he had appeared according to the
summons. R. S. C. 1883, Ord. LTV. r. 4c (Aug. 1894).

For notice of appearance, see next form.



Form 753.

Notice of
appearance.



\_Title.'\
Take notice that I have this day entered an appearance at the office
of the Registrar (Gos Winding-up), Bankruptcy Buildings, Garey
Street, London, to the originating summons in this matter dated the

day of , 189 — , for A. B., the \_or a] respondent to the sd

summons. Dated the day of ,189 — . (Signed) X. Y., of ,



Agent for



of



Solor for the sd A. B.



See Ord. LIV. r. 4c, supra.



Form 753 a.

Notice of
appointment
to hear ori-
ginating
summons.



Service of
Qotice.



{Title as i?i Form 1.)
To {insert name of respondetit^. Take notice that you are required
to attend at the office of the Registrar (Gos Winding-up) Bankruptcy

Buildings, Garey Street, London, on the day of , 18 — , at

o'clock in the noon, for the hearing of the originating sum-
mons issued herein on the day of , 1 8 — , and that if you do

not attend in person or by solor at the time and place mentd, such order
■will be made and proceedings taken as the judge {or Registrar] may
think just and expedient. (Signed) X. Y,, Solor for the Applicant.

R. S. C. 1883, 0. LIV. r. 4d (Aug. 1894).— The day and hour for attendance
under an originating Huinmons, to which an jippcaranco is required to bo entered,
nhall, tiJ'Ur (tppcarancc, be fixed by notice, scaled with the Hcal of the [registrar's
oflice]. Such notice shall bo in Form No. If, Appendix K. The notice shall be



EVIDENCE AND ORDER. 659

Borved on the flcfcnclant or respondent by delivering a copy thereof at the address
for service named in the memoi'andum of appearance of such defendant or respondent,
not less than four clear days before the return day.

R. S. C. 1883, 0. XIII., r. 15 (Nov. 1893). — Where a defendant or respondent Failure to
to an originating summons to which an appearance is required to be entered /ai7« appear.
to appear vi'ithin the time limited, the plaintiff or applicant may apply to the Court
or a judge for an appointment for the hearing of such summons; and upon a cer-
tijicate that no appearance has been entered, the Court or a judge shall appoint a
time for the hearing of such summons, upon such conditions (if any) as they or he
shall think fit.

The practice in cases in the Central Oftice is stated in An. Pr. (1897), 324 ; but
in cases before Vaughan Williams, J., as appearances are entered in the office of
the registrar, no certificate of non-appearance is required. When no appearance
has been entered and the time has expired, an appointment is given, and notice
thereof is issued in accordance with Form 753a. The notice may be served upon the
respondent in default by filing it. See E. S. C, 0. LXVIL, r. 4 ; and An. Pr.
(1897), 312, 1203.

Evidence and Order.

The evidence is by affidavit. See r. 11 of 1890, r. 17 of 1892, and Section I.,
Chap. XII.
As to the order, see r. 17 of April, 1892, and Section I., Chap. II.



Upon tLe applicon by summons dated, &c., of F., of &c., a contri- Form 754.
butory of tlie above-named coy, tlie applicant named in the originating- Order for
summons in tliis matter dated &c., and upon hearing the solor for substituted
the applicant, and upon reading the sd originating summons and two g^^I^Q °
affts of &c. It is ordered that the publication by advertisement in the
form set forth in the schedule hereto of the originating summons
issued in this matter on the 8th Nov. 1892, and of this order once in
the London Gazette and once in the Times newspaper, and the sending
of a copy of the sd originating summons, together with a copy of this
order through the post office prepaid, in a registered envelope ad- •
dressed [7iame and address'], be deemed good service of the sd originat-
ing summons on the sd P., one of the respts to the sd summons.

The Schedule.

To P. , late — , Street, London, E.G. Take notice that on

the 8th Nov. 1892, an originating summons was issued in the High

Court of Justice Cos Winding-up. In re the matter of the Coy,

Limtd, 00155 of 1892, that by such summons you were required to
attend at the office of the registrar, Bankruptcy Buildings, Carey Street,
London, upon the applicon of P., that \_folloio words of siimmons~\.
And take notice that by an order in the same matter dated 23rd Nov.
1892, it was ordered that publication by advertisement of the sd
originating summons and of that order, once in the London Gazette
and once in the Times newspaper, and the sending of a copy of the sd

u u 2



660



VOLUNTARY WINDING-UP.



originating summons together with a copy of the sd order, through the
post office in a registered envelope, addressed to you at &c., should be
deemed good service of the sd originating summons upon you.

And take notice that the registrar, Mr. , has appointed

day, the 7th Dec. 1892, at 11 o'clock in the forenoon, as the time at
which you are to attend at the office of the registrar &e., upon such
ajiplicon. And that if you do not attend either in person or by your
solor, such order will be made and proceedings taken as the judge or
registrar may think just and expedient. And before you will be
heard in Chambers you will have to enter an appearance at the office
of the Registrar (Cos "Winding-up), Bankruptcy Buildings, afsd, and
give notice of such appearance. Dated, &c. \^Name and address.^
Applicant's solors. Lo7ido7i Steam Shipping Co.^ 00155 of 1892.
Eeg., 23rd Nov. 1892.



Form 755.

Order for
liquidator to
give security
for costs of
originating
summons.



Upon the ajDplicon by summons dated, &c., and upon hearing the
solors for the api^licant and for the liqr of the above-named coy, and
upon reading the originating summons of L., of &c., chartered
accountant, the liqr of the above-named coy, issued on the 9th March,
1892, and the affi of &c. It is ordered that pursuant to sect. 69 of the
Cos Act, 1862, the above-named coy, the Q. &c. Coy, Limtd, and L.,
the sd liqr of the sd coy, do procure some sufficient person on his
behalf to give security by bond to M., the respt to the sd originating
summons in the penalty of 50/. conditioned to answer costs in case any
shall be awarded to' be pd by the sd coy to the applicants, and until
such security is given all further proceedings in the sd matter be stayed.
Queensport Brick and Tile Co., 1892, Q. 592, North, J., 23rd Mar. 1892.

See sect. 69 of 1862.



Form 756.

Order for
inspection in
voluntary
winding-up.



Upon the applicon of L., of , a contributory of coy, and upon

hearing the solors for the applicant and for A., the liqr of sd coy,
and upon reading the London Gazette dated 13th Sept. 1878, con-
taining an advertisement of the resolution to wind uj) the sd coy
voluntarily, the afft of P. filed, &c. Order that the sd A. do, within
seven days from the date of the service of this order, produce for the
inspection of the sd L., his accountants, solors and agents, at the

office of the sd A., situate at , or elsewhere, all books, papers,

and other documents of the sd coy in his possession or power as such
liqr as afsd, except business books after the sale of the sd assets to 8.
And order that the sd L. and his accountants, solors and agents shall
bo at liberty to take copies of any of the sd books, &c., and extracts
therefrom, at the expense of the applicant. Silher Lif/ht Co., Malins,
V.-C, lytli Dec. 1878. B. 2247.



EVIDENCE AND OKDER. ^61

Ui)on tlio applicou of A., tlie person by whom the originating Form 757.
summons herein was issued, and upon hearing the solors for the Order for
applicant and for S., the voluntary liqr of the above-named coy, and ijrofluction
upon reading the sd originating summons and the afft of &c. It is of'dommenttT
ordered that the sd S., the voluntary liqr of the coy, do at all season- in possession
able times, upon reasonable notice, produce at his office, situate at, &c., ° ^^^ ^ °^'
the documents in the schedule at the foot hereof, admitted by the sd
S. to be in his jDOssession or power. And the applicant, his solor
and agents, are to be at liberty to inspect and peruse the documents
so produced, and to take copies and extracts therefi-om as the appli-
cants shall be advised at their expense. And it is ordered that the sd
S. do produce the same documents ujdou any examination of witnesses



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 86 of 134)