Francis Beaufort Palmer.

Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

. (page 9 of 134)
Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 9 of 134)
Font size
QR-code for this ebook


judges of the Chancery Division, viz. : — Chitty, North, Stirling, and
Kekewich, JJ. The last three and Eomer, J., have jurisdiction to
complete the few liquidations retained in 1892, when the general
jurisdiction was transferred to Vaughan Williams, J.

(4) Order of 29th November, 1890.— The Lord Chancellor made a
second order of this date, excluding certain County Courts not having
bankruptcy jurisdiction from winding-up jurisdiction.

(5) Notice of 31st December, 1890. — Notice by President of Board
of Trade to liquidators as to payment of unclaimed or undistributed
assets.

(6) Order of 1st January, 1891. — Order of the Board of Trade
aj)pointing an Inspector-General in Companies' Liquidation.

(7) Order of 1st January, 1891. — By a second order or notice of this
date the Board of Trade notified the appointment of the Official
Receivers in Companies' Liquidation.

(8) Order of 13th February, 1891. — Order of Board of Trade
substituting new forms of Gazette notices for Form 86 in the Appendix
to theEules of 1890.

(9) Rules of 3Gth April, 1891. — These rules, made by the Lord
Chancellor with the concurrence of the Board of Trade, relate to
statements by liquidators, and payment of unclaimed and undistributed
assets under sect. 15 of 1890.

(10) Direction of 10th June, 1891. — This is a Treasury direction to
remit fees, which, if levied, would be payable out of money provided
by Parliament.

(11) Order of the 17th December, 1891.— Order of the Lord Chan-
cellor, with the concurrence of the Treasury, as to fees chargeable in
winding-up, and as to taking fees in stamps.

(12) Order of the 8th January, 1892.— Order of the Board of Trade
substituting a new form of liquidators' statement for Form 75 in the
Appendix to the Eiiles of 30th April, 1891.

b2



INTRODUCTORY.

(13) Order of the 8tli January, 1892. — Second order of the Board of
Trade of this date, substituting a new form of general proxy for Form
No. 73 in the Appendix to the Eules of 1890.

(14) Order of the 26th March, 1892.— The Lord Chancellor and
Lord Coleridge, C. J., made this order under sect. 2 of the Act of 1890,
and sect. 2 of the Judicature Act, 1884, vesting the winding-up juris-
diction of the High Court of Justice in Yaughan Williams, J.

(15) The Rules of 6th April, 1892, made by the Lord Chancellor,
with the concurrence of the President of the Board of Trade, under
sect. 26 of the Companies Act, 1890, and by the Eule Committee.

These rules came into operation on the 6th May, 1892 (r. 37),
and considerably modified the Eules of 1890. As to their appli-
cation see Eule 1, infra, p. 19.

(16) Order of the 24th June, 1892.— Order of the Lord Chancellor,
with the concurrence of the Treasury, allowing reduction of fees in
case of foreign companies wound up here.

(17) Order of the 28th July, 1892. — Order as to adhesive stamps.

(18) Rules of the 10th August, 1892. — These rules were made by
the Lord Chancellor and the Eule Committee with reference to actions
before the winding-up judge.

(19) County Court Rules, 1892. — Eule 146 of these rules purported
to extend the provisions of the Companies Acts, 1862 to 1890, and
the rules made thereunder, to the winding-up in the County Courts
of societies registered under the Building Societies Act, 1874, and
the Industrial and Provident Societies Act, 1876. See further
Chapter LIII.

(20) Order of the 16th September, 1892.— This order of the Board
of Trade appoints official receivers to County Courts which have no
bankruptcy jurisdiction, but have jurisdiction to wind up societies
registered under the Building Societies Act, 1874, and the Industrial
and Provident Societies Act, 1876.

(21) Order of the 3rd December, 1892. — As to swearing proofs.

(22) Order of the 29th March, 1893.— As to affidavits on petition,
and substitution of petitioner.

(23; Order of 24th August, 1893. — As to the Court's power to reduce
fees in certain cases.

(24j Order of 6th October, 1893. — As to the jurisdiction of the
Eoclidale County Court.

(25) Order of 31st January, 1894.— By this the Board of Trade
substituted a new form of advertisement of meeting to sanction call.

(26) Order of 2nd April, 1895. — This Order annuls Eules 45 and
63 (2), of 1870, and substitutes a new rule for the latter, relating to
first meetings.

(27) Order of 26th June, 1895.— By this the Board of Trade autho-
rized a new form of affidavit verifying a liquidator's account.



INTRODUCTORY.

(28) Order of 26th November, 1895. — As to filing depositions.

(29) Rule of 19th May, 1896. — As to attendance of creditors and
contributories in ClianiLers.

(30) Rules of 16th December, 1896.— As to the Connty Courts
which are to exercise the jurisdiction of the now abolished Stannaries
Court.

(31) County Courts (Stannaries Jurisdiction) Rules, 1897. — Ee-
gulating the winding-up in the County Court of companies formerly
wound up in the Stannaries Covu't.

Practice Notices.

Notices have been issued with reference to the practice of the High
Court as to (a) transfers of winding-up cases from County Courts ;
(b) motions before the winding-up judge ; (c) evidence by affidavit on
summonses ; (d) affidavits in debenture actions ; (e) stitching margins
in filed documents ; (f) shorthand notes of evidence ; (g) appointments
before the registrar ; (h) undertaking on filing affidavits out of time ;
(i) debentui'e actions. See Appendix C.

Interpretation Clauses.

The definitions and interpretations contained in the above Acts and
rules must be borne in mind in construing their provisions, and some
of the principal definitions and interpretations are given below.

The Companies Act, 1862.

" Company under this Act" {i. e., of 1862) means a company regis-
tered under Part I. of the Act, or under Part VII. of the Act, or treated
by Part YI. as registered.

"Company limited by shares" means a company formed or registered
under the Act of 1862, on the principle of having the liability of its
members limited to the amount unpaid on their shares. See sects. 8
and 196 of 1862.

"Company limited by guarantee" means a eomj)any formed or
registered under the Act of 1862, on the principle of having the lia-
bility of its members limited to such amount as the members under-
take to contribute to the assets of the company in the event of the
same being wound up. See sects. 9 and 196 of 1862.

' ' Limited company." — This phrase frequently occurs in the Acts, and
includes both the above companies limited by shares and limited by
guarantee. See sects. 41 — 43 and 69 of 1862.

"Unlimited company" means a company formed or registered under
the Act of 1862, on the principle of having no limit placed on tlie liability
of its members. See sects. 10, 179, 180 and 196 of 1862.



INTRODUCTORY.

"Joint-stock company," for the purpose of Part VII. of the Act,
is defined by sect. 181 of 1862.

" Unregistered company " has the meaning assigned to it by sect. 199
of 1862, namely, " Any partnership, association, or company, except
railway companies incorporated by Act of Parliament, consisting of
more than seven members, and not registered under this Act."

" Member " of a company has the meaning assigned to it by sect. 23
of 1862.

"Present members" means the persons who are members at the
commencement of the winding-up.

"Past members" means the persons who are not members at the
commencement of the winding-up, but only ceased to be members within
one year of such commencement. See sect. 38 of 1862.

"Registered oflB.ce" means, as regards a company under the Act of
1862, the registered office which it is required to have by sect. 39 of 1862.
" Registered oflH.ce," as regards an unregistered company, has the
meaning assigned to it by sect. 199 of 1862, which enacts that "an
unregistered company shall, for the purpose of determining the Court
having jurisdiction in the matter of the winding-up, be deemed to be
registered in that part of the United Kingdom where its principal
place of business is situate ; or, if it has a principal place of business
situate in more than one part of the United Kingdom, then in each
part of the United Kingdom where it has a principal place of business ;
moreover, the principal place of business of an unregistered company,
or (where it has a principal place of business situate in more than one
part of the United Kingdom) such one of its principal places of busi-
ness as is situate in that part of the United Kingdom in which pro-
ceedings are being instituted, shall for all the purposes of the winding-
up of such company be deemed to be the registered office of the
company." (And see sect. 32 of 1890, at foot of this page.)

"Register of members" means the register of members of a com-
pany to bo kept at the registered office of the company in accordance
with sect. 25 of 1862.

"Special resolution" means a special resolution as defined in sect. 51
of 1862.

" Extraordinary resolution " has the meaning assigned to it by
sect. 129 of 1862.

" Contributory" has the meaning assigned to it by sect. 74 of 1862.
See also sect. 38.

Companies {Winding-up) Act, 1890.
Sect. 32 of 1890. — (1) In this Act, unless the context otherwise
roquiroH, —

"The Companies Acts" means the Companies Act, 1862, and the
Acts amending the same.



INTRODUCTORY.

"General rules" means general rules made under this Act, and
includes forms.

"Prescribed" means prescribed by general rules.

"Stannaries Court" means the Court of the Vice-Warden of the
Stannaries. (Since abolished by the Stannaries Court (Aboli-
tion) Act, 1896.)

(2) In Part IV. of the Companies Act, 18G2, 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 juris-
diction under this Act to wind up the company.

(3) For the purposes of this Act the expression " registered office of
a company" shall mean the place which has been the registered office
of the company for the greater part of the six months immediately
preceding the presentation of the petition for winding-up of company,
and shall include, in the case of an unregistered company, any place
which, in pursuance of sect. 199 of the Companies Act, 1862, is to be
deemed to be the registered office of the company for the purpose of
the winding-up thereof. See sect. 199 of 1862, above.

The expression "company" and "winding-up by order of the
Court," must, when used in the Act of 1890, be interpreted with regard
to the following provisions : —

Sect. 31 of 1890. — (1) This Act shall not, except where it is expressed
to have a more extended application, apply to any company which is
being wound up in pursuance of an order made before the commence-
ment of this Act.

(2) For the purposes of this Act a company shall not be deemed to
be wound up by order of the Court if the order is to continue a
winding-up under the supervision of the Court.

(3) This Act shall not apply to any comjiany unless the registered
ofl&ce of the company is situate in England or Wales.

Comjmtues Winding-up Rules, 1890.
R. 2 of 1890. — In these rules, unless the context or subject-matter
otherwise requires, —

{a.) "The Acts" means the Companies Acts, 1862 to 1890.

"The company" means a company which is being woundup,
or against which proceedings to have it wound up have been
commenced.
" The CourV includes a Judge of the Court, and a chief clerk of the
Chancery Division of the High Court, or other officer of the
Court ivhen exercising the powers of the Court pursuant to the
Acts or these Rules, or the practice of the Court.
"Creditor" includes a corporation, and a firm of creditors in

partnership.
"Gazetted" means published in the London Gazette,



INTRODUCTORY.

"Judge" means, in the High Court, the judge to lohom the petition

to wind up the company is assigned, and in any other Court the

judge thereof or officer who exercises the powers of the judge

thereof.

"Proceedings" means the proceedings in the winding-up of a

company under the Acts.
"Official Receiver " includes any officer appointed by the Board
of Trade to discharge the duties of official receiver under the
Acts.
"Registrar," as applied to a County Court, includes, where
there are joint registrars, either of such registrars, or a
deputy registrar, and as applied to any Court other than the
High Court, means and includes the officer of the Court
whose duty it is to exercise in relation to a winding-up the
functions which in the High Court are exercised by a regis-
trar or chief clerk.
"Sealed" means sealed with the seal of the Court.
" Taxing officer" means the officer of the Court whose duty it is
to tax costs in the proceedings of the Court under its ordinary
jurisdiction.
"Liquidator" includes an official receiver when acting as
liquidator.
(b.) In the application of these rules to any Court other than the
High Court, the registrar may, under the general or special
directions of the judge, hear and determine any application or
matter which under the Acts and these rules may be deter-
mined in Chambers.
Eule 2 is modified as to the definitions of "registrar" and "judge,"
so far as relates to the High Court, by rr. 34, 35 of April, 1892, itifra,
but they still apply in the cases (thirty-five in number) retained by
Chitty, North, Stirling, and Kekewich, JJ. (See E. 1 of 1892.)

Comjjanies Winding-up litdcs, April, 1892.
R. 35 of April, 1892. — (1) In the application of the Companies
Winding-up Eules, 1890 and 1891, and these rules, to any winding-
up matter to which these rules apply : —

Expressions relating to the chief clerks and registrars of the
Chancery Division of the High Court shall, except in rule 133,
be deemed to refer and be construed as referring to the regis-
trar.
" Judge " shall in the High Court mean the judge who for the time
being exorcises the jurisdiction of the High Court to wind up
companies.
" Registrar " shall in tlio Higli Court mean and include any of the
liogistrars in Bankruptcy of the High Court, and any person



INTRODUCTORY.

who shall bo appointed to fill the office of registrar under these

rules, and where a winding-up matter is in the District Registry

of Liverpool or Manchester shall mean the district registrar.

(2) In these rules the expression "the rules " means all the rules

for the time being in force in relation to winding-up matters (including

these rules).

R. 37 of April, 1892. — These rules . . . shall be construed with and
deemed to form with the Companies AVinding-up Rules, 1890, one set
of rules. The forms in the Appendix to these rules shall be deemed
to form part of the forms of the Companies "Winding-up Eules, 1890.

Companies Winding-up Rules, August, 1892.
R. 3 of August, 1892. — In the Companies Winding-up Eules, 1890
and 1892, and these rules, the words "winding-up matter" shall, in
relation to the High Court, where the winding-up of a company is
proceeding before the judge, include any action brought by or against
that company which has been or shaU be transferred to the judge.

General Practice, how far applicable.

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

The jurisdiction and powers of the now abolished Stannaries Court,
which are transferred to certain County Courts, are to "be exercised
subject to and in accordance with rules of Court for regulating the
procedure in County Courts." Stannaries Court (Abolition) Act,
1896, s. 1.

County Courts (Stannaries Jurisdiction) Rules, 1897.

Proceedings for the winding-up of companies [formerly under the
Stannaries Court] shall be regulated by, and costs in such proceedings
shall be taxed under, the statutory provisions, rules, and scales of
costs for the time being in force for the winding-up of companies in
the County Courts.

And see ibid. r. 7 as to the fees of solicitors formerly practising as
advocates in the Stannaries Court.



10



Section I.

WINDING-UP BY THE COURT.



CHAPTEE I.

JURISDICTION.



Over what Companies.

The winding-up jurisdiction extends over —

1. Companies formed and registered under Part I. of the Act of 1862,
and having a registered office in England or Wales.

These companies are all registered with a memorandum of associa-
tion, and either as limited by shares, limited by guarantee, or un-
limited.

2. Companies to which the Act of 1862 is made applicable by the
provisions contained in Part YI. of that Act, and having a registered
office in England or Wales.

These companies include all companies formed and registered, or
registered but not formed, under —

The Joint Stock Companies Act, 1856.
The Joint Stock Companies Acts, 1856 and 1857.
The Joint Stock Banking Companies Act, 1857.
The Act to enable Joint Stock Banking Companies to be formed
on the principle of Limited Liability.

3. Companies registered under Part VII. of the Companies Act,
1862, and having a registered office in England or Wales.

The companies which can be so registered are specified in sects. 179
and 180 of the Act of 1862, and include companies incorporated by
Act of Parliament or by charter, also companies subject to the Act of
8 Vict. c. 110, intituled "An Act for the Pegistration, Incorporation,
and Regulation of Joint Stock Companies," and also companies formed
by deed of settlement, and cost-book mining companies. And the
Act provides (sect. 180) that the registration is not to be invalid by
reason that it has taken place with a view to the company being
wound up.

4. Unregistered companies, as defined in Part VIII. (s. 199) of the
Act of 1862, that is to say, " Any partnership, association or company
(except railway companies incorporated by Act of Parliament) con-



JUEISDICTION. 11

sisting of more than seven members and not registered under this
Act," and liaviug a registered office in England or Wales.

The following are instances of various kinds of unregistered com-
panies which have been ordered to be wound up : —

(1) Companies incorporated by Special Act. — Bradford Navigation,

10 Eq. 331; Weij and Arun Canal, 4 Eq. 197; Brentford
Tramways Co., 26 C. D. 527 ; Borough of Portsmouth Trams,

(1892) 2 Ch. 362; Isle of Wight Ferry Co., 2 H. & M. 597;

South London Fish Market, 39 C. D. 324.

(2) Companies incorporated by registration and possessed of a
Board of Trade Order under Gas and Water Facilities Act duly
confinned by Parliament. — Burton-upon-Humher Water Co., 42
C. D. 585, and many others.

(3) Companies incorporated by Royal Charter. — Oriental Bank

Corporation, 54 L. J. Ch. 481 ; Bank of South Australia, (1895)
1 Ch. 578.

(4) Foreign or colonial companies having assets and liabilities in
England. — Commercial Bank of India, 3 De G. & Sm. 253;
Matheson Brothers, 27 C. D. 225 ; Commercial Bank of South
Australia (No. 1), 33 C. D. 174; Queensland Alercantile Agency,
68 L. T. 878 ; 3Iercantile Bank of Australia, (1892) 2 Ch. 204 ;
Jarvis Conklin Mortgage Co. (U.S.A.), 11 T. L. E. 373.

The fact that the company has not any registered office here
does not preclude a winding-up order if it has assets and
liabilities here. Mercantile Bank of Australia, ubi supra.

Where there are assets and liabilities here, the Court is
disposed to make an order to protect the creditors here.
" I consider that I am justified in taking steps to secure the
English assets until I see that proceedings are taken in the
New Zealand liquidation to make the English assets available
for the English creditors, pari passu with the creditors in New
Zealand." Per Kay, J., Matheson Brothers, 27 C. D. 231.

The mere existence of a foreign winding-up order is not a
bar to an order here. S. C.

Where a foreign or colonial bank is ordered to be wound up
here, and there is a winding-up in the place of its constitution,
a winding-up here "would be confined to the property existing
in this country, and would only be by way of assisting a wind-
ing-up which either was going on or contemplated [abroad].
It would be only to protect the property in this country, and
the creditors in this country." Per Kay, J., North Australian,
Sfc. Co. V. Goldshorough, S^-c. Co., 61 L. T. 717, and the Court
has acted accordingly in the case of the various Australian
banks ordered to be wound up in 1893. See also Form 72b,
infra.



12 WINDING-UP BY THE COUET. [ChAP. I.

(5) Companies registered under the Act of 1844 (7 & 8 Yict. c. 110).
Professional Life Assurance Co., 3 Eq. 671, and many others.

(6) Partnership or syndicate. Royal Victoria Syndicate, 29 L. T.

668 ; Ansonia Fibre Co., 9 Ch. 635 ; Scaramanya &^ Co.,
Pearson, J., 18th April, 1885 ; Franl Mills Co., 23 C. D. 52
(cost hook mining company).

(7) Building societies formed prior to the Building Societies Act,

1874 (37 & 38 Vict. c. 42), s. 32, and not registered under that
Act. Doncaster Buildiny Soc, 3 Eq. 158 ; Queeti's Building
Soc, 6 Ch. 815 ; Chester Unity Building Soc, Pearson, J.,
10th May, 1884. Under the Building Societies Act, 1874, the
jurisdiction of winding up building societies under that Act
was vested in the County Court, but the Building Societies
Act, 1894 (57 & 58 Vict. c. 47), s. 8, provides that every such
society shall be deemed to be a company within the meaning of
the Companies (Winding-up) Act, 1890.

(8) Trustees' Savings Banks. Under the Trustee Savings Bank

Act, 1863, and 50 & 51 Vict. c. 47, ss. 3, 4.

(9) Life assurance 'Companies. Albert Life {IS69) ; Family Endow-

ment Soc, 5 Ch. 118; Great Britain Mtitual, 16 C. D. 246;
British Natio7i, 8 0. D. 679 ; Masonic and General, Re Sharpe,
(1892) 2 Ch. 154.

(10) Industrial and provident societies. 56 & 57 Vict. c. 39.

But the following have been held not to be unregistered eompauies
within the definition, and therefore incapable of being wound up
under the Act : —

(a) An illegal company, e.g., one rendered illegal by sect. 4 of the
Companies Act, 1862. Padstoiv, Sfc. Association, 20 C. D. 137.

(b) A trade union. See Trade Union Act, 1871 (34 & 35 Vict. c. 31),
and Trade Union Act, 1876 (39 & 40 Vict. c. 22).

(c) A railway company incorporated by Act of Parliament ; for, as
appears above, sect. 199 of the Act expressly excepts such a company
from the jurisdiction ; but a company is not to be considered a railway
company within the exception unless the construction of a railway is
its main object. Hence a dock or ferry or other company which owns
a railway as a subsidiary work is not a railway company within the
exception. Exmouth Docks, 17 Eq. 181 ; Isle of Wight Ferry, 2 H. &
M. 597. Nor is a tramway a railway company within the exception.
See Brentford, !^~c. Trams, 26 C. D. 527 ; Bororigh of Portsmouth, Sfc
Trams, (1892) 2 Ch. 362. Sometimes, however, a railway company
obtains an Abandonment Act, and in such case it can be wound up.
Soo 30 & 31 Vict. c. 127, s. 31 ; 32 & 33 Vict. c. 114, s. 4; Skipton Sf
Wharfdale Rail. Co., 20 L. T. 359 ; Uxbridge Rail. Co., 43 C. D. 536.

Occasionally, too, a railway company obtains an Act expressly
making it subject to the winding-up jurisdiction. It is clear that a



JURISDICTION. 13

railway company can register, under Part VII. of the Act, as a limited
company, and if it does this it can, of course, be wound up as a com-
pany under Part IV. of the Act.

(d) Dissolved companies ; for the jurisdiction does not extend to a
company which has been duly dissolved under sections 111 or 142 of the
Act of 1862, unless, possibly, the dissolution on tlie ground of fraud
can be set aside. London and Caledonian, Sfc. Co., 11 CD. 140;
Pinto Mining Co., 8 C. D. 273 ; Coxon v. Gorst, (1891) 2 Ch. 73.

(e) Companies struck off the register under the Companies Act,
1880, s. 7 ; but an order can be obtained under para. 5 of sect. 7 of
this Act to restore to the register, and then the company can be
wound up.

(f) Nor, it seems, an ordinary club {St. James's Cluh, 2 D. M. & C
383) ; nor an association to which the Literary and Scientific Institu-



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 9 of 134)