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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Form 775.

Order as to
appointing
sohcitor to
liquidator.



Upon the applicon of M., one of the liqrs of the above-named coy,
&c., Order that Mr. C, the present solor of the liqrs, be discharged
from being such solr. And this Ct doth hby appoint Mr. P., the
official soh', to be the solr of the sd liqrs in the place of the sd C. And
order that the sd 0. do, within fourteen days after the service of this
order upon him, deliver up upon oath to the sd P., all papers in his
possession relating to the winding-up of the sd company, but this
order is to be without prejudice to any claim the sd C. may make for
payment of his costs. And order that the costs of this applicon be
costs in the winding-up. Hester Sj- Co., Bacon, V.-C, 6th June, 1878.
A. 1230.

Although sect. 97 of 1862 has been repealed by sect. 33 of 1890, it must be
within the power of a voluntary liquidator, whether acting under supervision or
not, to appoint a solicitor. Where there are two liquidators, and they cannot agree
as to the appointment of a solicitor, it is doubtful whether the Court can appoint
one for them. It is true that an order was made by Bacon, V.-C, as above; but
in the Colonial Trusts Corporation, December, 1878, Jessel, 11. R., considered that
he had no jurisdiction to make such an order. He, however, removed one of the
liquidators.



Form 776. Upon the applicon of D. C, of , and E. C, his wife, resply



~^ contributories of the above-named coy, by summons dated 2nd Feb.

contrilnitories 1892, and upon hearing the solor for the applicants, and for E., the
to attend pro- liqr, and upon reading the supervision order dated 13th June, 1892,
ccedings. ^^^ ^^^ ^j jy ^^ gjg^ ^g^^ p^^_ jgg2, It is ordered that the sd D. C.

and E. C. be at liberty at their own expenses to attend the proceedings
before the judge in these matters under the sd order, dated 13th June,
1892, and it is ordered that the sd D. C. and E. C, upon payment of
the costs occasioned thby, have notice of all such proceedings as they
shall by writing desire to have notice of. C. Fox, Chief Clerk.
Russell, Cordncr Sc Co., North, J., 19th Feb. 1892.



Ah to liberty to attend, soo Rr. 60 — 62 of 1862.



CREDITOKS.



677



In the matter, Sec



Appearance Book.



Date when

Appearance

entered.



Pnrty's
Name.



Whether

Creditor or

Contributory.



If he appears
in person, his
Address for



If he appears

by a Solicitor,

his Solicitor's

Name.



Solioitoi^
Address.



Amount of

Debt
[or, Number
of Shares].



See R. G2 of 1S62 as to this book.



Form 777.

Appearance
book.

Form 53 of
1S62.



Liberty to bring, and Restraining, Actions.

Where a supervision order has been made, sect. 87 of 18G2, by virtue of sect. 151,
supra, applies, and accordingly no action or proceeding can be commenced or pro-
ceeded with against the company except with the leave of the Court. The applica-
tion for leave is generally made by summons. See further, Section I. , Chap. XXXIV.
The following is an example of an oixler : —

Upon the applicon of E., a creditor of the above-named coy, and Form 778.
upon hearing the solors for the applicant and for S. and W., the Liberty to
voluntary liqrs of the sd coy, and upon reading an order dated, &c., bring action.
for continuing the voluntary winding-up of the sd coy under super-
vision and an afft, &c., It is ordered that the sd E. be at liberty to
bring an action against the above coy on behalf of himself and all
other the holders of mortgage debentures to the extent of 60,000/.
issued by the sd coy for the purpose of enforcing and realizing the
security. Haivne Collieries Co., Malius, V.-C, 11th July, 1877.
A. 1414.

If after a supervision order any proceeding against the company, e.g., a sale. Restraining
distress, or execution, is taken without the sanction of the Court, application can ^^ ions, -c.
be made to the Court to restrain the same, as in the case of a compulsory winding-
up. See sect. 163 of 1862, which refers expressly to supervision proceedings, and
Section I., Chaps. XXXIII., XXXV.

Under sect. 148 of 1862, supra, upon the presentation of the petition, application
can at once be made ex parte to stay or restrain actions or proceedings as in the case
of a petition for a compulsory winding-up. See Chap. XXXIII., and Thurso Kew
Gas Co., 42 C. D. 488.

Creditors.

If the liquidator has not, previously to the supervision order, issued the usual Notice to.
notices to creditors, he should do so immediately after the order. The form will bo
the same as in a purely voluntary winding-up. See Form 722. But in many cases Adjudication
it is considered desirable to have the debts and claims adjudicated on by the Court, ^
and in such cases the form of advertisement is generally settled by the registrar.
In these cases application should be made by summons for an order as in Form 779,
and the advertisement will be as in Form 780.



678



WINDING-Ur UNDER SUPERVISION.



Dividends.



As to inspection of the company's Looks in supervision cases, see sect. 156 of
1862 and Section I., Chap. XII.

As to setting aside transactions as being fraudulent preferences, see sect. 164 of
1862 and Section I., Chap. XLV.

In due course the liquidator will consider the claims sent in, and make out the
list of creditors as in the case of a purely voluntary winding-up. If necessary, he
can apply to the Court to adjudicate upon any disputed claims, as in a voluntary
winding-up, and a claimant can also apply to the Court as in the case of a com-
pulsory winding-up.

Where the Court adjudicates generally on the debts and claims, the procedure will
be the same as in a compulsory winding-up under the old practice.

Dividends. — "Where the Court has adjudicated on the debts and claims, it is usual
to apply for liberty to declare dividends, as in a compulsory winding-up ; but other-
wise the liquidator acts as in a purely voluntary winding-up.



Form 779.

Order for
inquiry as to
debts.



Upon tlie applicon of A. B., tlie liqr of the above-named coy, hy
summons, dated, &:c., and upon hearing the solors for the applicant,
and reading an order, dated, &c. [the supervision order], It is ordered
that an inquiry be made what are the debts of the sd coy ; And the
Ct doth hby fix the 14th day of Oct., 1892, 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 ad-
dresses of their solors, if any, to the sd A. B., of, &c., the liqr of the
sd coy. And it is ordered that such creditors, if so required by notice
in writing from the sd liqr, by their solors or personally, come in and
prove their sd debts or claims at the office of the sd Registrar (Cos
Winding-up), Bankruptcy Buildings, Carey Street, London, at such
time as shall be specified in such notice. And it is ordered that in
default thof such creditors be excluded from the benefit of anj' distribu-
tion made before such debts are j^roved. And it is ordered that for
the purpose of carrying out this order such advertisements be forthwith
issued in such newspaper as the judge shall direct. Neic British Iron
Co.f 0031 of 1892, and Private Livestors Association, 1891, P. 036, Keg.,
12 Aug., 1892.



Form 780.

Advertise-
ment for
creditors.



{Title as in Form 1.)

The creditors of the above-named coy are required, on or before
Friday, the 14th day of Oct. 1892, to send their names and addresses,
and the particulars of their debts or claims, and the names and ad-
dresses of their solors (if any) to W. F., of &c., the liqr of the sd coy,
and, if so required, by notice in writing from the sd liqr, are by their
solors or personally to come in and prove their sd debts or claims at the
office of the llegistrar (Cos Winding-up), Bankruptcy Buildings, Carey
Street, London, at such time as shall bo specified in such notice, or in
default tluiroof ihvy will bo excluded from the benefit of any distribu-
tion made before such debts are proved,



CREDITORS. 679

Tuesday the 25tli day of Oct. 1892, at 12 o'clock at iioou, at tlie sd
offices of the Registrar (Cos Winding-up), is appointed for hearing
and adjudicating upon the debt and claims.

Dated this day of July, 1892.

, Registrar.



Upon the applicon of C, the liqr of the above-named coy, by sum- Form. 781.
mens dated 13th June, 1892, and upon hearing the solors for the appli- Order sWms
cant and for and , and upon reading the supervision order of liberty to



admit claim.



18th July, 1891, the afEt of applicant, filed 10th June, 1892, &c., it is
ordered that the applicant be at liberty to admit the claim of F., par-
ticulars of which are set out in the sd afft of the applicant of Hth
June, 1892, at the sum of 4,184/. Glendon Iron Co., 1891, G. 0242,
17th June, 1892. Vaughan Williams, J., at Chambers.



Upon the applicon of , the liqr of the above-named coy, and Form 782.

upon hearing the solors for the applicant, and upon reading the London TTT ^

Gazette of the day of , containing an advertisement requiring creditors to

all creditors of the sd coy to send their names, addresses, and parti- ■'^'^7^/^^ ^

eulars of their debts or claims, and the names and addresses of their

solors (if any), to the applicant ; And it appearing from the certificate

of the sd liqr dated, &c., that all claims made against the sd coy in

pursuance of the sd advertisement justly due and proper to be allowed,

have been allowed by him, as such licp, without further evidence,

with the exception of those mentd in the schedule hereto. It is ordered

that the persons named in the second column of the sd schedule hereto

do, when so required by notice in writing from the sd liqr, come in and

prove their sd debts or claim at the Chambers of the sd judge, at such

time as shall be specified in such notice. And that in default thof such

creditors be excluded from the benefit of any distribution made before

such debts are proved.

The ScnEDULE above eefeeeed to.

[This contained four columns, headed resply "Name of claimant,"
"Address and description," "Particulars of claim," and "Amount
claimed."] West London Civil Service Co., 1891, W. 39.52. North, J.,
at Chambers.



Upon applicon of liqr by summons to proceed upon the order dated, Form 783.
&c. \^Form 782], whereby the persons whose names are set forth in the Order allo-w-
Bchedule to such order were, when required by notice in writing from ing and dis.
tJie liqr, to come in and prove their debts or claims as in the sd order cia^^°°



G80



WINDIiNG-UP UNDEK SUrEKVISION.



mentd ; Aud upou hearing tlie solors for the applicant and for ;

And upon reading the sd order of the 3rd Dec. 1891, and the afft of,
&c. ; It is ordered that the several persons whose names and addresses
are set forth in the first part of the schedule hereto be allowed, as
creditors of the above-named coy, for the amounts set opposite their
respive names, and that the claims of the persons whose names and
addresses are set forth in the second part of the schedule hereto be dis-
allowed. And it is ordered that the costs of the applicant of this
applicon be costs in the liquidation of the above-named coy. [The
Schedule hinbefore referred to, which contains two parts — " Claims
allowed" and "Claims disallowed." Each schedule being in five
columns, headed resply "No.," "Name of claimant," "Address and
description," " Particular of claim," " Amount claimed."] West L071-
don, Sfc. Stores, Lhntd, 1891, W. 3952. Eegistrar, loth June, 1882.
And see Btickingham and Adams, Limited, 1891, B. 0705, Eeg., 23rd
March, 1893.



Form 784.

Order declar-
ing rights of
secured
creditors to
prove for
deficiency and
set off interest
against
profits.



The applicon of Q. and M., which upon hearing the solors for the
applicants and for the liqr of the L. Coy, Limtd, in Chambers, was
adjourned to be heard in Ct, coming on this day to be heard accord-
ingly, and upon hearing counsel for the applicants and for the sd liqr,
and upon reading an order dated the 22nd Jan. 1887, &c., this Ct doth
declare that for the purpose of ascertaining the amount for which the
aj)plicants are entitled to be admitted to prove as unsecured creditors
of the above-named coy, no portion of the proceeds of sale or realiza-
tion of the applicants' securities can properly be appropriated to the
discharge of interest accrued after the 8th Jan. 1887, being the date
of the commencement of the winding-up of the coy, but that any sums
representing profits realized by the recrs and managers for the carry-
ing on of the business of the Ship Tavern, and also any sum repre-
senting interest, dividends, or income arising from any investments of
the proceeds of sale or realization of any of the applicants' sd secu-
rities may be properly so appropriated and retained by the applicants.
And this Ct doth declare that the applicants are entitled to be ad-
mitted to prove as unsecured creditors of the coy for a svmi represent-
ing the full amount of ppal and interest due to the applicants upon
their securities on the 8th Jan. 1887, and the costs of the applicants as
plaintiff's in the action Q. v. The L. Co., Limtd, and the costs, charges,
and expenses properly incurred by the applicants or the late pits, as mort-
gagees, after deducting therefrom the gross amount arising from the
sale or roalivcation of the applicants' securities, without regard to the
investment of the amount so arising, or to tlio proceeds of such invest-
ments when realized. And it is ordered that it be referred to the
taxing master to tax the costs of the applicants and of the liqr of the



MEETINGS, Gi»l

sd applicon in Chambers and occasioned by the adjournment tliof into
Ct. And it is ordered that the costs of the liqr bo paid out of the
assets of the coy. And it is ordered that it bo referred to Chambers
to ascertain the amount for -whioli, upon the footing of the above
declarations, the applicants are entitled to be admitted to prove as un-
secured creditors of the coy. And it is ordered that they bo admitted
to prove accordingly for the amount to be certified. And any of the
parties are to be at liberty to apply as they may be advised. London,
Windsor, &;c. Co., Ld., Stirling, J., 4th March, 1892. B. 241.

In the above case, after a mortgagee had, at the commencement of the -winding-
up, obtained a receiver, who carried on business at a profit, the property was sold,
leaving a balance due to the mortgagee ; and he was allowed to prove only for the
balance due at the date of the winding-up, after deducting the security, but was
allowed to set off profit realized since winding-up against interest during that
period. Loudon, Windsor, ^-c. Co., (1892) 1 Ch. G39.

Contributories.

After a supervision order the liquidator usually makes out and settles the list, as Settliu"- list.
in a voluntary winding-up. However, in a good many cases application is made
to the Court to settle the list. Applications by contributories to rectify the list are
common.

Sometimes, and especially when the Court has settled the list of contributories, Calls,
application is made to the Court to make calls, but in general the liquidator makes
the calls himself, and merely applies to the Court, where necessary, to enforce
payment. For orders for calls, see Volunteer Co-operative Co., M. E,., 22nd July,
1877. B. 1422.

The liquidators generally declare dividends without any application to the Court. Dividends.

Meetings.

Sect. 139 of 1862 empowers the liquidators to summon general meetings for the Power to
purpose of obtaining the sanction of the company by special or extraordinary reso- summon,
lution, or for any other purposes they think fit, and also requires annual meetings
to be held. The meetings should be convened by notice, in accordance with the
regulations of the company.

Under sect. 139 of 1862 the liquidator is to convene a meeting of contributories Annual.
every year, and submit an account thereto. This applies even when a supervision
order has been made. TTriy/^j's cas<', 5 Ch. 437; and Form 765. See also sect. 142, Final
as to the final account. account.

As to the power of the Court to order meetings to be summoned, see sects. 149 Power of
and 91 of 1862; and as to the judge's memorandum of direction for meeting, see Court,
the next form, and R. 47 of 1862.



In the Matter, &c. _, „__

Memdum. ^^^^ 785.



Mr. Justice has directed a meeting of the creditors of the above- Memorandum

named coy to be summoned pursuant to the above statute, for the j)ur- fo^ i^^*'!-"^,
pose of ascertaining their wishes as to continuing to carry on the works,



682



WINDING-UP UNDEK SUPERVISION.



with the view of effecting a sale thof as a going concern, and that such
meeting shall be held on, &c., at the office of the liqr, No. — , Old
Jewry, in the City of London. The judge has appointed Gr., the sd
liqr, to act as chairman at such meeting.

And see Section I., Chap. XXXVI.

Meetings of creditors or contributories are frequently directed, under the old
practice, pursuant to sects. 91 and 149 of the Act of 18G2, for the purpose of
ascertaining their wishes in regard to matters connected with the winding-up. The
meeting is sometimes called pursuant to a memorandum as above, but very com-
monly an order is made.

A meeting may be called to consider whether a winding-up order shall or shall
not be made. Thus, in the case of The Emma Silver Mining Co., a petition
having been presented, Malins, V.-C, directed a meeting of members to be con-
vened ' ' for the purpose of ascertaining their wishes as to certaia matters relating to
the winding-up of the company."



Form 786.

Notice
convening
meeting.
■Form 45 of
1862.



{Title as hi Form 1.
Notice is hereby given that Mr. Justice —



• has directed a meeting
of the creditors [or contributories] of the above-named coy to be
summoned pursuant to the above statute, for the purj)ose of ascertain-
ing their wishes as to \^stote the object for which meeting called, unless
notice is hy advertisement, in which case say, certain matters relating to
the winding-up of the sd coy], and that such meeting will be held on
— — day, the day of , 1 8 — , at o'clock in the noon,



in the county of



at which time and place all the



at —

creditors [or contributories] of the sd coy are requested to attend.

[The sd judge has appointed H. T., of, &c., to act as chairman of such

meeting.]

Dated this day of , 18 — .

E. P. H., Off Liqr.

See Er. 45 and 46 of 1862.



Form 786a.

Proxy.
Form 46 of
1862.



{Title as in Form 1.)

I, "W. S., of in the county of , being a creditor [or con-
tributory] of the above-named coy, hereby appoint , of , as

my proxy to vote for me, and on my behalf, at the meeting of the
creditors [or contributories] of the sd coy, summoned by direction of

[Mr. Justice ], to be held on the day of , and at any

adjournment thof.

As witness my hand this day of -



li



w. s.

Signed by the sd W. S. |
in the presence of )

J. M., of, &c.

Sec R. 46 of 1862, snpra.

As to -wlu'thtT the proxy Hhould be a member of the class of persons called to the
meeting, see Madras Irrigation Co., and remarks thereon, infra, Section IV,



MKiynxGs.



683



Mr. Justice



{Tlfh; as in Form 1/
has appointed INIr. H.



Form 787.



T., of, &c., one of the



Appointment
creditors [or contributories] of the above-named coy, to act as chairman of chairman,

of a meeting of the creditors [or contributories] of the sd coy, sum- ^^^ °

moned by direction of the sd judge, pursuant to the above statute, to

be held on day, the day of , 189 — , at o'clock in

the noon, at , in the county of , and to rejiort the result

of such meeting to the sd judge.

The sd meeting is summoned for the purpose of ascertaining the
wishes of the creditors \_or contributories] of the sd coy as to [state the
object for ivhich meeting called'] ; and at such meeting the votes of the
creditors [or contributories] may be given either personally or by
proxy.

Dated this day of , 189 — . H. H., Registrar .

The chairman is more commonly appointed by the order directing the meeting.



In the matter, &c.
I, H. T., the person appointed by Mr. Justice



Form 788.



to act as chair-



tories, holding in the whole



Name of Creditor
[or Contributory].



Value of Debt
{or Number of Shares].




Number of Votes conferred on

each Contributory by the

Regulations of the Company.



man of a meeting of the creditors [or contributories] of the above-
named coy, summoned by advertisement [or notice], dated the

day of , 188 — , and held on the day of , 188 — , at ,

in the county of , do hby report to the sd judge the result of such

meeting as follows : —

The sd meeting was attended, either personally or by proxy, by

creditors, to whom debts against the sd coy have been allowed,

amounting in the whole to the value of 1, [or by contribu-



Chairman's
report of
meeting.
Form 48 of
1862.



shares in the sd coy, and entitled



resply, by the regulations of the coy, to the number of votes hnftr
mentd].

The question submitted to the sd meeting was, whether the creditors
[or contributories] of the sd coy approved of the proposal of the off
liqr of the sd coy, that, «S:c. [as the case may be~\, and wished that such
proposal should be adojited and carried into effect.

The sd meeting was unanimously of opinion that the sd proposal
should [or should not] be adopted and carried into effect [or The
result of the voting upon such question was as follows : —

The under-mentd creditors [or contributories] voted in favour of the
sd proposal being adopted and carried into effect : —



(i84



WINDING-UP UNDER SUPERVISION.



The under-mentd creditors [or eontributories] voted against the sd
proposal being adopted and carried into effect : —



Name of Creriitor
[or Contributory].



Address.



Value of Debt
[or Number of Shares].



Number of Votes conferred on

earh Contributoi y by the

Regulations of the Company.



Dated this



day of , 188—.



(Signed) H. T., Chairman.

As to the above form, see Rr. 45 — 47 of 1862.



Form 789.

Order approv-
ing special
resolution
authorizing
sale.



Upon the applicon of H. and M., the liqrs of the above-named coj',
and upon hearing the solors for the applicants, and upon reading, &c.
The judge doth sanction the resolutions passed by the above-named
coy on the 25th Sep. 1890, and confirmed on the 14th Oct. 1890,
authorising the sale of the ppty of the coy to a new coy to be called

The Coy, Limtd. Original Pittsburg^ Sfc. Mines, Liintcl., North, J.,

23rd Jan. 1891. B. 63.



Compromises, Arrangements, Reconstruction.

In ■winding-up under supervision, compromises with creditors (under sect. 159 of
1862), and with eontributories (under sect. 160), require the sanction of the Court
as in a compulsory winding-up. See Section I., Chap. XL VII. ; and R. 49 of
1862.

As to arrangements and reconstructions, see Section IV.



Form 790.

Order

sanctioning
acceptance of
composition.



Upon the applicon of M., the licj^r, &c., by summons dated 3rd Aug.
1892, and upon hearing the solors for the applicant, and upon reading,
&c. It is ordered that the applicant be at liberty to accept a composi-
tion of 7s. Q)d. in the I. on the sum of 1., being the amount of a

debt and calls on shares due to the coy by D., of &.c. And that the
applicant be at liberty to consent to the general arrangement entered

into between the sd D. and his creditors mentd in the sd exhibit

to the sd afl't of the applicant. Louis S. Cohen, Limtd., 1892, L. 088,
Eegistrar. 10th Aug. 1892.

For order giving liberty to compromise misfeasance proceedings, see New Oriental
Bank (Jorporalion, Vaughan Williams, J., 22nd June, 1895.



Form 791. Upon the a])plicon of S., tlio li(ir of the above-named coy, and upon

Tr\ ' hoarinc: tlio solors for the applicant, and upon reading the order of the

Order as to ° ii -t

compromise of 7th day of Aug. 1 890, continuing the voluntary winding-up ot the sd coy,



MISCELLANEOUS OlJiJHK.S. 683

subject to the supervision of the Ct, the London Gazette of the 19th of claims, and

Aug-. 1890, containing tlie advertisement of the sd order, a joint afft remuiK-ration

of the applicant S. and M., fdedSth May, 1891, an afft of the applicant and accounts.

S., filed 5th June, 1891 ; It is ordered that the applicant be authorized

to compromise the claims made upon the sd coy by D. & Son, and the



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