Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

. (page 100 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 100 of 152)
Font size
QR-code for this ebook


coy in the event of such costs not being recovered from the sd respt.
Glanamman Tin Plate Co., 00359 of 1898. Wright, J., Nov. 9, 1898.



Perm 776.

Removal of
one of joint
liquidators
and continna-
tion of the
other.



Upon the applicon by originating sunmions, dated, &o., of D., of,
&c., one of the joint liqrs of the above-named coy, &c., The Ct doth
hby remove the sd 0. from his office of joint liqr with the sd D. of
the sd coy, and doth hby appoint the sd D. sole liqr of the sd coy.
And order that all the ppty, cash, books of account, and other papers
and documents in the possession, custody, or power of the sd 0.
belonging to the sd coy be delivered up to the sd D. as such sole
liqr as afsd. Pearce Sf Co. {Cardiff \ Limtd^ 0029 of 1899. Hood,
Beg., March 2, 1899.



Perm 777.

Order ap-
pointing
additional
Hqnidator on
dismissing
petition to
wind up.



Upon the peton of , of, &o., creditors of the above-named coy,

on the, &c., preferred unto this Ct praying that the above-named coy
might be wound up under the provisions of the above-mentd Acts,
and upon hearing, &c., and upon reading, &c., and P., hnftr named,
having given security by entering into a recognizance, dated, &c.,
which has been duly enrolled, and the petrs and the above-named
coy and liqr by their counsel consenting to this order. This Ct doth
not think fit to make any order on the sd peton except that the sd P.,
of, &c., be appointed liqr of the above-named ooy in the voluntary
winding-up thof, to act jointly with the sd B. And order that the
costs of the petr of the sd peton be taxed and pd out of the first
assets of the coy remaining after the proper claims of the debenture-
holders of the above-named coy have been satisfied. Dee Cee CjfcU
Engineering Co,, 0069 of 1899, Wright, J., Feb. 27, 1899.



Digitized by



Google



FINAL MEETING. 791



Final Meeting.

As soon as the company's affairs are foUj wound up, the liquidators make up an How oon-
aocount showing how the winding-up has been conducted and the property disposed ^^^'
of, and call a general meeting, before which the account is laid and an explanation
is g^ven bj the liquidators. The meeting is called by advertisement, specifying its
time, place, and object, and the adyertisement is published one month at least
previously to the meeting in the L<mdon Gazette. See sect. 142 of 1862, $upraf and
see Section I., Chap. LI.



The Ooy, Limtd. Form 778,



Notice is hby given in pursuance of sect. 142 of the Cos Act, 1862, NoUce con-
that a general meeting of the members of the above-named coy will be ^l^^ng.
held at , on day, the of , at o'clock in the after-
noon, for the purpose of having an account laid before them, showing
the manner in which the winding-up has been conducted, and the ppty
of the coy disposed of, and of hearing any explanation that may be
given by the liqr, and also of determining by extraordinary resolution
the manner in which the books, accounts, and documents of the coy,
and of the liqr thof, shall be disposed of.

Dated the day of •

A. D., Li^r.

Besides the purposes mentioned in sect. 142 {tupra), for which a general meeting
is called, there is another for which an extraordinary resolution generally passed at
the same meeting is called, viz., the destruction of the books, as to which see sect.
165 of 1862.

And where the meeting is to dispose of the books, &c., besides advertising the Destruction
meeting, as required by sect. 142, notice to the same effect must also be given to books,
the members of the company, by post or otherwise, as provided by the articles
thereof, so as to comply with the requirements of sect. 129 as to an extraordinary
resolution.

The notice for insertion in the Gazette must be signed by the liquidator. If the Gazette
signature is attested by a solicitor whose name is in the Law List, that may be '"^'^<'^*
sufficient, but sometimes the Gazette requires a duplicate to be verified by the

statutory declaration of some person who will state that he was present on the

day of , and saw \t?ie liquidator'] sign the notice hereto annexed, and that

the signature set and subscribed to the said notice as the attesting witness to

the said signature is of the proper handwriting of the declarant.

At the meeting the liquidator will present the account referred to in the notice. Proceedings
and win give any requisite explanations ; and resolutions will be passed for the ** nieetmg.
adoption thereof, and as to the books, e,g. : — 1. That the account submitted to this
ineeting, and showing the manner in which the winding-up has been conducted, and
the property of the company disposed of, be received and adopted. 2. That the
books, accounts, and documents of the company, and of the liquidator thereof, be
retained by the said liquidator, he uudertaking to destroy the same upon the dis-
solution of the company, c^*, handed over to the purchaser of the company's

[leasehold property].



Digitized by



Google



792



VOLUNTARY WINDING-UP.



Impoitance
of oissolviDg.



Effect of dis-
solution.



Notice to Registrar and Dissolution.

The Toliintary liquidator mnst (under penaltiee) make a retnm to the Registrar
of Joint Stock Companies of the final meeting haying been held, and of the date at
which it was held, and on the expiration of three months from the date of the r^^
tration of such return the company shall he deemed to be dissolyed. See sect. 143
of 1862.

Where a company is wound up yolontarily, it is of great importance to all parties
that it should be duly dissolved in manner before mentioned, for until dissolution it
continues to exist, and accordingly forgotten liabilities may be discoyei^ and dis-
putes revived, and the conduct of the liquidator impeached. Many dissolutions
take place every year.

When the company has been dissolved as aforesaid, the Court will not make a
winding-up order, even upon the petition of a creditor who has been excluded.
Finio Silver Mining Co., 8 Ch. Div. 273 ; Westboume Grove drapery Co., W. N. (1878)
195. But in a case of fraud it might be possible to set aside the dissolution.
London and Caledonian Co., 11 Ch. D. 140.

Until the expiration of the three months, application can be made to the Court,
and a winding-up order may be made. Crookhaven Mining Co., 3 Eq. 69.

It has not been settled whether the dissolution prevents proceedings by action
against the liquidator for misfeasance committed in the winding-up. But qumre
whether proceedings may not now be taken under sect. 10 of 1890. And see Rr. 174,
175, 176 of 1903. And under Rr. 174, 176 of 1903, ** whether the liquidation has
been concluded or not," particulars of unclaimed funds may be obtained by the
Board of Trade, and, semhle, proceedings may be taken, notwithstanding he has
obtained his release. See Re Chudley, 14 Q. B. D. 402.

And see tupra. Chap. LI.

And where the liquidator neglects his duty, e.g., by distributing the assets
without paying the creditors, he may notwithstanding the dissolution be sued by a
party who has been prejudiced. Puhford v. Devenish, (1903) 2 Ch. 626. That
was a reconstruction case, and the liquidator, treating the covenant of the new
company to pay the creditors as sufficient, made no attempt to ascertain or pay
them.



Form 779.

Notice to
registrar of
final meeting.



The Coy, limtd.

To the Begistrar of Joint Stock Coys.

I beg to inform jou that a meeting of the above-named coy was

duly held on the day of , for the purpose of having an

account laid before them, showing the manner in which the winding-up
of the coy has been conducted, and the ppty of the coy disposed of,
and the same was done accordingly.

Dated, &c.

, Z^.

Other notices are required on the dissolution of building societies, see Section I.,
Chap. Ln.



Digitized by



Google



Section III.
WINDING-UP UNDER SUPERYISION.



793



The following Index of the Matters treated of in this Section may be
found conyenient : —



PAQB

Aooounts,

Of liqnidaton 814

Final 819

AotionB,

Effect of Order on 794

Liberty to bring 822

Stajinflr 794

Additional liiqiiidator 796

Advertisement,

Of Supervision Order . . . .800, 804

ForCreditors 827

Appearance Book 806

Applications to the Court 805

Appointment of Liquidator 806

Arrangements 833

Assignees* Power to Sue 798

Balance Order 831

Books,

Destruction of 835

Evidence of 797

Inspection of • 798

Calls 830

Commencement of Winding-up .... 795
Committee of Inspection — Order

with 803

Compromises 833

Compulsory Order, effect of 797

Contributories,

Listsof 830

Wishesof 796

Costs 834

Court, the 799

Applications to .... • 805

Creditors 826

Advertisements for 827

Wishesof 796

Debts,

Inquiry as to 827

Provable 798

Destructiun of Books 835

Dissolution 835

Distress,

Effect on 798

Evidence

OfBooks 797

Execution,

Effect on 798

Unal Account • « , 819



Pi.OS

Fmal Meeting 835

Fraudulent I^^erenoe 798

G^amishee Orders 820

General Practice,

Before Order 794

After Order 795, 799

Hearing 794

Inspection 798

Junsdiction • • 796

Liberty to Attend 800

Liber^ to Bring Actions 822

Liquidators,

Accounts of 814

Additional 796

Appointment of 806

Kemoval of 806

Remuneration of 812

Restrictions on 803

Security of 810

Meetings 813, 823

Miscellaneous Orders 819

Misfeasance 798

Petition,

Formof 794

Whomay 794

Preliminary Observations 794

Proxies 824

Reconstruction 833

Removal of Liquidator 806

Remuneration of Liquidator 812

Representation Order 806

Restrictions on Liquidators 803

Rules of Court Applicable 799

Security of Liquidator 810

Sections Applicable 796

Service 799

Settling List of Contributories .... 830

Solicitor 811

Stayio^ Actions 794

Supervision Orders,

Effect of 794, 797, 799

Formof 800

Unclaimed Dividends 832

Vacancies among Liquidators .... 806
Varying List of Contributories .... 830

Wishes of Contributories 796

Wishes of Creditors, &o 796



Digitized by



Google



794



WINDING-UP UNDEB SUPEBYISION.



Petitioners*

Court and
jurisdiotion.

Form of
petition.

Effect of
petition on
actions.

Gkneial
practice
down to
hearing.



Hearing.
Order.



Effect of
order.



Preliminary Observations.

Of course there can be no supervision order— that is to say, ^* an
order directing that the yoluntary winding-up should continue, but
subject to the supervision of the Court" (see sect. 147 of 1862, infra) —
unless there is in existence a valid resolution for voluntary winding-up.
See supra, p. 116.

As to who may petition, see sect. 82 of 1862, and supra, pp. 62 etseq,
and p. 113.

As to the Courts having jurisdiction to make supervision orders, see
supra, Section I., Chap. I.

As to the form of petition, see supra, Form 31.

The filing of the petition gives the Court the same jurisdiction as
to actions as the filing of a petition for a compulsory order. See sect
148 of 1862, in/ra, and Section I., Chap. XXXTTI.

As to the general practice following the presentation of the petition
and down to the hearing, see note, supra, p. 85.

Generally speaking, the practice is the same down to the hearing as
that which applies in the case of a petition for a compulsory winding-
up order, and it will be found in Section I., Chaps. HI. to Vlll.

As to the considerations which aSect the Court in deciding whether
a supervision order is to be made, see supra, pp. 114 ei seq.

As already pointed out, a creditor has now, under sect. 25 of 1900,
a locus standi to apply to the Court under sect. 138 of 1862 in a purely
voluntary winding-up, but must generally apply by originating
summons, whereas a supervision order (sect. 147 of 1862), as will
be seen from the form below (Form 781), giving liberty to "the
creditors " " and all other persons interested " " to apply [to the Court]
as there may be occasion," enables creditors to apply by ordinaiy
summons. And see, as to when supervision orders will now be
granted having regard to sect. 25 of 1900, supra, p. 114.

The order, though very different in operation from a compulsoiy
winding-up order — inasmuch as it does not put an end to, but continues
the voluntary winding-up — has in some respects the same effect as a
compulsory winding-up order; for by sect. 151 of 1862, although the
voluntary liquidators may, subject to any restrictions imposed by the
Court, exercise their powers without its sanction or intervention,
"save as aforesaid" the supervision order "shall for all purposes,
including the staying of actions, suits, and other proceedings, be
deemed to be an order of the Court for winding-up tbe company bj
the Court," and the section points out certain specific things which can
be done under a supervision order as well as under a oompulsorj
order.

The Companies (Winding-up) Act, 1890, however, is not so wide
in its termsi for sect. 31 (2) of that statute provides that "for the



Digitized by



Google



COMMENCEMENT OP WINDING-UP. 795

pnrpoees of this Act a company sliall 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." The effect of this section is that the official
receiyer has but little to do with a winding-up which is merely under
the supervision of the Court, that the machinery of appointing a
liquidator or a committee of inspection applicable when a compulsoiy
order has been made forms no part of the practice under a supervision
order, and that public examination, at any rate under sect. 8 of the
Act of 1890, is impossible in proceedings merely under supervision.

In case, however, the mere supervision of the Court should turn out
to be insufficient, sect. 14 of the Act of 1890 gives the official receiver
liberty to petition for a compulsory winding-up order, and sect. 152 of
1862, tn/ra, shows that a supervision order may be superseded by a
compulsoiy order at the instance of any person who can petition for a
compulsory order.

After the supervision order has been made, the practice differs from Praotioe sab-

that which has to be followed when a compulsory order has been "©q^io^tto
- x- .^ supervision

made.

Prior to the coming into operation of the Eules of 1903, the general

practice, instead of being governed by the Rules of 1890, was regulated

by the General Order of the Court of Chancery of the Rules of

11th Nov. 1862, subject to certain modifications. But the Order of

1862 was annulled by R. 203 of 1903, and as to the application of the

Rules of 1903, see R. 1, referred to infra.



Commencement of Winding-up.

A supervision order merely continues the voluntary winding-up, and Whsnob it
accordingly the winding-up in such cases commences " at the time of ^*^^'™-
the passing of the resolutions authorizing such winding-up," as pro- resolution,
vided by sect. 130 of 1862, even where the petition upon which the
order is made was presented before the resolution was passed ( Weston^ s
case, 4 Ch. 20; Emperor Life Assur, Soc, 31 C. D. 78), notwithstand-
ing a provisional liquidator has been appointed. JVest Cumberland
Iron and Steel Co,, 40 C. D. 361.

In the case of a special resolution (sect. 61 of 1862) the resolution is Speoial
passed within the meaning of the above section at the confirmatory "^ ^ ^^'
meeting.

The fact that no liquidators are appointed does not affect the validity
of the resolution. Thomas v. Lionite Co., 17 C. Div. 250.

Where a compulsory order is made after a voluntary winding-up Compulsoiy
has oonmienced, the winding-up commences as from the presentation ^^^*
of the petition on which the ordw is made. Taurine Co,, 25 C. Div.
118.



Digitized by



Google



799



WINDING-UP UNDER SUPERVISION.



Status of
members.



Where a petition for a compulsoiy order is presented, and a resoln-
tion for a yoluntarj liquidation is subsequently passed, and a super-
vision order is made in ignorance of material intervening transactions,
the Court of Appeal may extend the time to appeal, and make a
compulsory order. Manchester Economic, 24 C. D. 488. See further,
9upraj p. 4.

In the case of a supervision order, all dispositions of the property,
effects, and things in action of the company, and every transfer of
shares, or alteration in the status of the members of the company
made between the commencement of the winding-up and the order
for winding-up, shall, unless the Court otherwise orders, be void.
Sect. 153 of 1862, and National Bank of Wales, (1897) 1 Oh. 298.
In practice, however, this provision has been disregarded, and it has
not been customaiy to apply for any general confirmation order.
But Yaughan Williams, J., in one case made an order adopting the
proceedings prior to the supervision order.



Power to
make super-
vision Older.



Petition*



How far a
winding-np
by the Court.

Gonrt may
haverega^
to wishes of
creditors.



Additional
liquidators.



Sections and Bules applicable to Winding-up
under Supervision.

Sect. 147 of 1862. — "When a resolution has been passed bj a companj to wind up
Toluntarilj, the Court may make an order directing that the voluntary winding-up
should continue, but subject to such supervision of the Court, and with such liberty
for creditors, contributories, or others, to apply to the Court, and generally upon
such terms and subject to such conditions as the Court thinks just.

Sect. 148 of 1862. — A petition, praying wholly or in part that a voluntary
winding-up should continue, but subject to the supervision of the Court, and which
winding-up is hereinafter referred to as a winding-up subject to the supervision of
the Court, shall, for the purpose of giving jurisdiction to the Court over suits and
actions y be deemed to be a petition for winding-up the company by the Court.

[But see sect. 31 (2) of 1890.]

Sect. 149 of 1862. — ^The Court may, in determining whether a company is to be
wound up altogether by the Court or subject to the supervision of the Court, in
the appointment of liquidator or liquidators, aod in all other matters relating to the
winding-up subject to supervision, have regard to the wishes of the creditors or
oontributorics as proved to it by any sufficient evidence, and may direct meetings of
the creditors or contributories to be summoned, held, and regulated in such manner
as the Court directs for the purpose of ascertaining their wishes, and may appoint
a person to act as chairman of any such meeting, and to report the result of such
meeting to the Court : in the case of creditors, regard shall be had to the value of
the debts due to each creditor ; and in the case of contributories, to the number
of votes conferred on each contributory by the regulations of the company.

[And see sect. 91 of 1862 and Section I., Chap. YIII.]

Sect. 150 of 1862.— Where any order is made by the Court for a winding-up
subject to the supervision of the Court, the Court may, in such order or in any
subsequent order, appoint any additional liquidator or liquidators ; and any liqmdaton
so appointed by the Court shall have the same powers, be subject to the SUP^



Digitized by



Google



SECTIONS AND BULKS. 797

obligations, and in all respects stand in the same position as if they had been
appointed by the companj : the Ck>iirt maj from tinke to time remove any liquidators
so appointed by the Court, and fill up any vaoancy occasioned by such removal, or
by death or resignation.
[See infra, Forms 784—786, 798—800.]

Sect. 161 of 1888. — ^Where an order is made for a winding-up subject to the Effect of
Buperrision of the Court the liquidators appointed to conduct such winding-up p i^
may, subject to any restrictions imposed by the Court, exercise all their powers •^iQdino-.Qn
without the sanction or intervention of the Court, in the same manner as if the subject to
company were being wound up altogether voluntarily; but, save as aforesaid, any supervision,
order made by the Court for a winding-up subject to the supervision of the Court
shall for all purposes, including the staying of actions, suits, and other proceedings,
be deemed to be an order of the Court for winding-up the company by the Court,
and shall confer full authority on the Court to make calls, or to enforce calls made
by the liquidators, and to exercise all other powers which it might have exerdsed
if an order had been made for winding-up the company altogether by the Court ;
and in the construction of the provisions whereby the Court is empowered to direct
any act or thing to be done to or in favour of the [official liquidators], the expres-
sion [official liquidators] shall be deemed to mean the liquidators conducting thd
winding-up subject to the supervision of the Court.

As to the word "oflScial," see sect. 4 (3) of 1890. See also
sect. 31 (2) of 1890, as to the difference between a supervision and a
compulsorj order.

Sect. 162 of 1888.— Where an order has been made for the winding-up of a Effect of oom-
oompany subject to the supervision of the Court, and such order is afterwards pnlsory order,
superseded by an order directing the company to be wound up oompulsorily, the
Court may in such last-mentioned order, or in any subsequent order, appoint the
voluntary liquidators or any of them, either provisionally or permanently, and
either with or without the addition of any other persons, to be [official liquidators].

See note to last section. But clearly first meetings of creditors
and contributories have first to be summoned, as in the case of an
ordinary compulsory winding-up.

The above sections are comprised in the part of the Act of
1862 specially relating to winding-up under supervision, but the
following ^^ supplementaiy provisions '* also apply in supervision
proceedings : —

Sect. 168 of 1888. — ^Where any company is being wound up by the Court, or Dispositions
subject to the supervision of the Court, all dispositions of the property, effects, and "f*^ ***® ^*J™"
things in action of the company, and every transfer of shares, or alteration in the ru . windinir-
stdtuB of the members of the company, made between the commencement of the np avoided,
winding-up and the order for winding-up, shall, unless the Court otherwise orders,
be void.

[See Section I., Chap. XXXII.]

Seot. 164 of 1888.— Where any company is being wound up, all books, accounts. Books of oom«
and documents of the company and of the liquidators shall, as between the con- pany to be

evidence.



Digitized by



Google



798



WINDING-UP UNDER SUPERVISION.



tribotories of tlie oompaDj, be primd faeie evidence of tiie tmth of all matters
purporting to be therein recorded.



Disposal of
books on dis-
solution.

Inspection.



See Section I., Cliap. XII.

Section 155, as to the disposal of the books, accounts, and docu-
ments of the company on dissolution. See Section I., Chap. U.

Section 156, as to the inspection of books and papers of the company
by creditors and contributories under the Court's order. See Section I.,
Chap. Xn.



Power of
assignee to
sue.

Debts of all
descriptions
to be proved.



Sect. 167. — Any person to whom any thing in action belonging to the company is
assigned in pursuance of this Act may bring or defend any action or suit rdating to
such thing in action in his own name.

Sect. 158.— In the event of any company being wound up under this Act, all
debts payable on a contingency, and idl claims against the company, present or
future, certain or contingent, ascertained or sounding only in damages, shall be
admissible to proof against the company, a just estimate being made, so far as ia
possible, of the value of all such debts or claims as may be subject to any contin-
gency or sound only in damages, ox for some other reason do not bear a certain
value.



As to insolvent companies, see Jud. Act, 1875, s. 10; and see
Section I., Chap. XXXVII.
Compromises. Sects. 159 and 160, relating to the sanction of general schemes of
liquidation and compromises, also expressly apply in the case of
winding-up under supervision. See Section I., Chap. XLYI.



Certain
attachments,
sequestra-
tions, and
executions to
be void.



.Fraudulent
preference.



Criminal
sections.



Compaiiies
(Winding-up)
Act, 1890.



Hisfeaatnoe.



Sect. 168. — ^Where any company is being wound up by the Court, or subject to
the supervision of the Court, any attachment, sequestration, distress, or execution
put in force against the estate or effects of the company after tiie commencement of
the winding-up shall be void to all intents.



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 100 of 152)