Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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where the oontributories have not done so by their winding-up resolu-
tions. London Quays Co., 3 Ch. 394.

But after a supervision order the shareholders may meet, resolve on
appointment of new liquidator, and inform the Court of their wishes.
Montrotier AephaUe Co., W. N. (1874) 172.

For orders as to liquidators made after the supervision order, see
Forms 798 — 800.



1. I have for more than [15 years] last past known, as being well Form 792.

acquainted with W., of , chartered accountant, the person pro- ^^fQ^avit of

posed to be appointed liqr of the above-named coy. fitness of

2. The sd W. is a member of the firm of , chartered accountants, ^^dator.

and has been a member of such firm for the whole period during which

I have been acquainted with him.

3. The sd W. is a x>erson of respectability and integrity and of good
credit, and in my judgment is a fit and proper person to be appointed
liqr of the coy.

Upon the applicon by summons, dated, &c., of , creditors of the Form 793.

above-named coy, and upon hearing, &c., and upon reading, &c., and q^^
the sd X., one of the liqrs of the above-named coy, by his counsel, replacing
offering to retire. Order that it be referred to the Eegistrar (Cos Wind- Jntddatora
ing-up) to appoint a proper person as a liqr of the above-named coy
in the place and stead of the sd X., to act jointly with the sd Q-., And
order that the costs of all parties of the sd applicon, and the question
as to the remuneration of the sd X., as one of the liqrs of the sd coy,
be reserved, with liberty to the sd X. [to apply]. Thrutchley Brothers,
0082 of 1895, Eomer, J., 15th June, 1896.



See another order in General Credit Co. (4th Oct. 1895, Giffard, Beg.)) directing
the new liquidator to give security, and the remaining old and the new liquidator
to file periodical reports, as usually directed in a supervision order.

For appointment of additional liquidator, see Eeommio Fire Office, 0082 of 1894,
Hood, Beg., 25th Oct. 1895.



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808



WINDING-UP UNDER SUPERVISION.



Form 794.

Order remov-
ing one of
two liqni-
dators, and
oontinuing
the other.



Upon the applicon of , being the committee appointed by the

general body of creditors to represent them in the winding-up of the
above-named coy, &c., Order that B., one of the joint liqrs of the sd
coy, be and he is hby removed from such office, and the sd EL, the
other joint liqr, be continued and he is hby appointed sole liqr of the
sd coy ; And order that the applicants and the sd B. and K. be allowed
their costs of and relating to this applicon out of the assets of the sd
coy [to be taxed]. Colonial Trusts Corporation^ M. R., 19th Dec. 1878.
A. 2303.

In the above case the liqoidators could not agree as to the appointment of a
Bolioitor, and accordmglj one of them was removed on the application of the com-
mittee. See further as to removal of liquidator, supra.



Form 795. Upon the applicon of D. and S., creditors of the above-named coy,

^~T ^ to remove T. from the office of [off] liqr of sd coy, and to appoint H.

iDg liquidator in his place and stead, &c., Order that the [off] liqr of sd coy be

and appoint- removed from his office as such foffl liqr as afsd. And order that in
ing another. l j t.

his place and stead the sd H. be appointed [off] liqr of the sd coy.

And [costs]. Moorwood Moor^ Sfc. Co,^ Malins, V.-C, 22nd Nov. 1876.

B. 1940.

The above order, made in a compulsory winding-up, may be used, with the
neoef^sary variation, in supervision proceedings. And see next form.



Form 798. Upon the applicon by summons, dated, &c., of W. and B., the petrs

Anpointment ^*™^®^ ^^ *^® order dated, &o. [supervision order\ and upon hearing,

of one liqni- &c., and upon reading, &c. [including supervision order\ and the certi-

^^no^^e?!*''^ ficate of the clerk of the enrolments dated this day, and C, hnftr

named, having given security by entering into a bond dated, &c.,

together with the 0., &c., Limtd, as his sureties, which sd bond has

been approved by the Ct and duly enrolled, This Ot doth hby appoint

the sd 0., of, &c., to be liqr of the above-named coy in the place of X.,

And order that the sd C. as such liqr do quarterly in each year file

with the Eegistrar of Cos (Winding-up) a report as mentd in the sd

order, dated, &c. [supervision order\ Automatic Telephone Parent

Syndicate^ 00346 of 1898, Hood, Beg., Feb. 21st, 1899.



Form 797. Upon the applicon by summons, dated, &c., of X., &c., the petrs

Appointment J^*"^®^ "^ ^® peton preferred unto this Ct on, &c., and upon hearing,

of b<|uidator &c., and upon reading the [supervision order and affts\ and the certi-

Q^^^j ficate of the clerk of enrolments filed this day. And this Ct having on

the 4th July, 1898, approved of B., of, &o., as a proper person to be



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APPOINTMENT AND REMOVAL OP LIQUIDATORS, ETC. 809

appointed liqr of the above-named 007, and having approved of the sd
B. acting as such liqr as from the 4th July, 1898, And the sd B.
having given security by entering into a bond together with
L. Guarantee, &c. Co., dated, &c., and a recognizance of even date
therewith, which sd bond and recognizance have been approved by
the Ct and duly enrolled, This Ct doth hby appoint B., of, &c., liqr of
the above-named coy, And order that the sd B. do file with the
Begistrar of Cos (Winding-up) reports as mentd in the sd order,
dated, &c. [viz., supervision order^. Umtoli Gold Reefs Co., 00328 of
1897, Hope, Beg., March 13th, 1899.



Upon the applicon of P., the [off] Uqr, and it appearing that the sd Form 798.
applicant has not received any sum or sums of money or any of the ^JJoron
assets of the sd coy since the date of his appointment as [off] liqr thof , resignation,
and the sd applicant desiring to resign his office of such [off] liqr, J^o^ts.^
Order that the sd P. be discharged from the office of [off] liqr of the
sd coy, and the sd recognizances and bond be discharged and cancelled.
JohnMarsland ^ Co., Ohitty, J., 1 6th April, 1883. A. 562.



Upon the applicon by summons, dated, &c., of X., one of the liqrs of Form 799.
the Ambition Investment Bldg. Soc, and upon hearing the solors for ^^^^^ T"
the applicant and for Y., the other liqr of the sd society, and upon liquidator,
reading, &c.. Order that the sd X. be and he is hby discharged from ^g^^^
his office as a liqr of the sd society, and that Y., the remaining liqr, Ck>art on
do act as sole liqr of the sd society. And the sd X. and Y. by their ?^^
solors admitting that they have in their hands as such liqrs as afsd the

sum of /., representing assets of the above-named society. Order

that the said X. and Y. do, on or before the, &c., make the lodgment
in Ct, as directed in the lodgment schedule hto. And order that the
sd Y. do, on the 3 1st Deo. and the 30th June in each year, leave at
the chambers of the Eegistrar (Cos Winding-up) his half-yearly
account as liqr of the sd society, the first of such half-yearly accounts
to be left at the sd chambers on the 31st Dec. 1898. And order that
the sd Y. do pass such half-yearly accounts, and make the lodgments
in Ct of the balances that may from time to time be certified to be due
from him on each such account as directed in the lodgment schedule
hto. And order that the costs, charges and expenses, not yet taxed,
allowed or paid, of the sd X. and Y. as such liqrs as afsd of and
relating to the winding-up of the sd society, including therein the
amount due to M. for surveyor's fees, and also including therein the
costs of the sd applicon, be taxed. And order that the funds in Ct be
dealt with as directed in the payment schedule hto. Ambition Investment
BuUding Soc, 00106 of 1895, Wright, J. (Chambers), 3rd Aug. 1898.



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810



WINDING-UP UNDER SUPERVISION.



Form 800.

Re-appoint-
meut of two
of three liqai<
dators on
incapacity of
third.



Upon the applicon of the petr in the matters, and of H. and 8., two
of the liqrs of the above-named coy, and upon hearing the solors for
the applicants, and reading the order dated the 2nd Aug., 1884, the
chief clerk's certificate, dated the 2drd and filed the 28th July, 1890,
the afft of, &c., and it appearing that G., one of the present liqrs of
the above-named coy, is mentally incapacitated and otherwise unfit
for business, and the judge having approved of the sd H. and 8. as
liqrs of the above-named coy, without requiring them to give security,
doth hby appoint the sd H., of, &c., and 8., of, &c., liqrs of the above-
named coy, in the place of themselves and the sd G. And it is ordered
that the sd H. and 8. do forthwith lodge in the chambers of the judge
their third and final account as liqrs, in conjunction with the sd G., of
their receipts and payments from the 20ih day of May, 1890, the foot
of the accounts already rendered by them. And it is ordered that the
X. Bank and Y. Bank resply be at liberty to transfer to the sd H. and
8., as such liqrs as afsd, any moneys standing in the sd banks resply
to the credit of the sd G., H., and 8., as such liqrs as afsd. And it is
ordered that the oosts of and incidental to and oonsequent upon this
applicon be oosts in the winding-up. Underhank MilU^ ^. Co.,
North, J., 7th Jan., 1891. B. 108.



Old practioe
still pre?ailB.



Seourity of Liquidator.

Br. 60 and 61 of 1903, as to the security of the liquidator, do not
apply in supervision proceedings.

As to when security is required, see note to Form 785.

Where security is required, it should, unless otherwise directed, be
given in accordance with the old practice, which was as follows :— A
summons was taken out by the liquidator *' to settle the seourity to be
given by him pursuant to the order " dated, &c. The diief derk (now
the registrar) determined the amount and nature of the security to be
given, and evidence as to the assets was required, the liquidator
making an afiidavit that he had examined the books and papers of
the company, and that to the best of his knowledge, information and
belief, the assets consisted exclusively of the particulars in the schedule.
8ee "Company Precedents," 5th ed. 757. The security was by
recognizance, as in Form 10 of 1862, in which case an affidavit of eadi
surety was required, to the effect that he was worth ** the sum of
/. of lawful money of Great Britain over and above what is suffi-
cient for the payment of all my just debts and liabilities."

But in many cases the bond of a guarantee company was aooepted
instead of the recognizance of ordinary sureties, and such a bond,
with or without a recognizance, is now often aooepted. See Forms
796, 797.

On applying to such a company for a form of proposal, the usual



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APPOINTBiENT OP SOLIdTOE. Bll

form of bond bj way of securitj can also be obtained. The chief
clerk (now the registrar) signed his allowance of the security in the
margin thereof, and gave a certificate that the liquidator had given
security pursuant to the General Orders and Eules of Court.

For orders reducing security, see Form 801, and Thermo Co,, M. R.,
19th July, 1878, B. 1548; Duplex Electric, Bacon, V.-C, 13th June,
1884, A. 902; Western of Canada, ^c, Co., M. R, 24th July, 1878,
B. 1559 ; Britannia Iron Works, M. R., 7 March, 1878, A. 480.

Where a liquidator was discharged, whether upon a dissolution
order being made or otherwise, an order was made vacating any
recognizance or bond entered into or given by him or his sureties.



Upon the applioon by summons, dated, &c., of P. and A., the liqrs Form 801.
of the above-named coy, and upon hearing, &c., and upon reading the £77"! 3"
order, dated, &c., directing the voluntary winding-up of the sd coy to amount of
be continued, but subject to the supervision of the Ct, the certificate hquidator's
of the registrar, dated, &c., of the applicant A. having given security
as liqr, an afft of, &c., and the consent in writing of the L. Guarantee
and Accident Coy, limtd, dated this day, Order that the security
given by the sd A. as liqr by the joint and several bond in the sum of

/. of the sd A. and the L., &c. Coy, dated, &c., and duly enrolled,

be reduced from the simi of /. to the sum of /., and that the

sd bond do, as from the date of this order, stand as security for

sum of /. and no more, and that the liability of the sd L., &c. Ooy,

in respect of the amount mentd in the sd bond be, as from the date of

this order, limtd to the sd sum of /., but subject and without

prejudice to the liability of the sd A. and the sd L., &c. Coy, or either
of them under the sd bond in respect of any sum or sums of money
peed by the sd A. or otherwise prior to the date of this order. And
order that a memdum in the words and figures following be indorsed
upon the sd bond : — ** The amount for which this bond is to stand

security has been reduced from the sd sum of /. to the sum of

^." And order that the costs of this applicon be costs in the

winding-up. Brice Sf Co., 0012 of 1897, Hood, Regr., April 14, 1899.



Appointment of Solicitor.

Upon the applicon of M., one of the liqrs of the above-named coy. Form 802.

&c.. Order that Mr. C, the present solor of the liqrs, be discharged ^3" T —

from being such solor. And this Ct doth hby appoint Mr. P. the appointing
official solor, to T>e the solor of the sd liqrs in the place of the sd O. ^^!^L*^
And order that the sd C. do, within fourteen days after the service of
this order upon him, deliver up upon oath to the sd P. all papers in



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812



WINDING-UP UNDER SUPERVISION.



his possession relating to the winding-up of the sd coj, 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 he
costs in the winding-up. Hester Sf Co,, Bacon, V.-C, 6th June, 1878,
A. 1230.

Although Beet. 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, M. R., considered that
he had no jurisdiction to make such an order. He, however, removed one of the
liquidators.



Fixing^ by
Ck)urt.



Increasing,



Taxation.



Bemuneration of Liquidator.

Hr. 137 et seq. of 1903, as to a liquidator's remuneration, do not apply
in supervision proceedings.

The Court is, however, sometimes asked to fix the remuneration of
the liquidators. It has jurisdiction to do so under sects. 93, 151 of
1862. And see Cannan^s Claims 7 Eq. 102, and the following forms.

Moreover, where a voluntary liquidator has been appointed at a
specified remuneration, the Court, after a supervision order, has power
to increase it in a proper case. Northern Counties Bank, Chitty, J., at
Chambers, 1 5th March, 1883. And the supervision order now almost
invariably requires the liquidator's remuneration to be brought in for
taxation. See Form 781, supra, and the note thereto. The tendency
now is to give the liquidator remuneration on the scale applying to
official receivers. See Appx.

Where, as is usual (see Form 781), the supervision order directs
the petitioner's and liquidator's costs to be taxed and paid out of the
assets, the liquidator's Tomuneration, from the commencement of the
windiDg-up to the date of the supervision order, is postponed to such
taxed costs, and also to any further costs for work properly done by
the solicitor, by the liquidator's authority, after the supervision order.
Sanitary Burials Ass., (1900) 2 Ch. 289.



Form 803. Upon the applicon of C, the liqr of coy, and upon hearing the

^r: ~ — Bolors for the applicants and for D., the person appointed to represent

remuneration the creditors, and upon reading an order dated 18th July, 1876, the

of liquidators, affirmation of the sd C, filed, &c.. Order that the sum of L he

allowed the sd liqr for his services aa liqr from the Ist July, 1876, to
the 31st March, 1877, both inclusive, and that he be at liberty to
retf^in the same out of the assets of the sd bank. And order that the



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EEMUNEEATION OF LIQUIDATOR. 813

costs of tUs applioon be costs in the winding-up. Oriental Commercial
Bank, Bacon, V.-O., ISth AprU, 1877. B. 678.

For order oontaiaiiig declaration as to right to remuneration onder special
agreement, see Yuruari Co. (1891, Y. 0379), Vaoghan Williams, J., 30th June,
1896.



Upon the applioon of B., W., and S., the liqrs of the above coy, and Form 80ft.
upon hearing the solors for the applicants, and upon reading, &c., Order fixing"
Order that the remuneration of the liqrs of the coy be allowed at the remuneration
rate of 4 p.c. upon the first 10,000/. of the realized assets of the sd coy, "^'""•tor.
and at the rate of 3 p.c. upon such assets beyond the sd 10,000/. up to
20,000/. And order that the sd liqrs be at liberiy to retain the sd
remuneration out of the assets of the coy, and to apply for further
remuneration in respect of any assets realized beyond 20,000/. Bati'
cliffe Investment Co,, Bacon, V.-O., 26th April, 1875. B. 694. {Supw-
vision Order, 7th June, 1873.]



Upon the applioon of A. and 8., the surviying liqrs of the coy, and Foim 805.

upon hearing the solors for the applicants, and reading the order — —

dated 26th April, 1875, order dated 21st April, 1877, order dated 29th ^j^^!*^"
Jan. 1878, and 4th Jan. 1880, and it appearing the realized assets of dators further
the coy exceed 20,000/., Order that the remuneration of the sd liqrs be ™'™®'*
allowed at 2^^ p.c. upon 4,994/., the amoimt of the realized assets of
the coy in excess of 20,000/., and upon all other sums, if any, realized
by the sd liqrs, and that the sd liqrs be at liberty to retain their sd
remuneration out of the assets of the sd coy. Radcliffe Investment Co,^
Baoon, V.-C, 8th May, 1882. B. 847.



Upon the two several applicons of the liqr of the sd coy, and upon Form 806.

hearing the solors for the applicant, Order that the applicant be at fT~T~7

liberty to convene a meeting of the creditors thof for the purpose of convene
submitting to them and obtaining their sanction to an arrangement ™;®5^^ ®' .
between the creditors and the applicant with respect to his future remuneration,
remuneration as such liqr. Credit Co. and another co,, Kay, J., 29th
May, 1883. A. 829.

And see infra, p. 823, as to meetings.



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814



WINDING-UP UNDER SUPERVISION.



Form 807.

Advertise-
mezit of meet*
ingas to
remuneration.



The advertiflement was as follows : —

In the High Ct, &c.

In the matter of the Cos Acts, 1862 and 1867,

and
In the matter of the Joint Stock Arrangement Act, 1870,

and
In the matter of the Credit Coy, Limtd.

Notice is hby given that the Hon. Mr. Justice Kay has directed a
meeting of the creditors of the above-named coy to be summoned pur-
suant to the above statutes, for the purpose of ascertaining their wishes
as to an agreement intended to be entered into with Mr. D., the liqr
of the coy, with respect to an allowance to be made to him out of the
dividends payable to creditors, as an addition to his remuneration, and
that such meeting will be held at the Cannon Street Hotel, in the City
of London, on Thursday, the 14th day of Jime instant, at twelve
o'clock at noon, at which time and place all the creditors of the sd coy
are requested to attend.

The sd judge has appointed Mr. E. M., of , to act as chairman

of the sd meeting.

Dated the 5th day of June, 1883.

E. J. D., Li^.



Sect. 16 of
1890.



AhhurI

aocount.



Order for
sooount.



Aooounts of Liquidator.

Br. 149 and 150 (as to the books to be kept by liqiddators), 151 (as
to investment of funds), and 152 to 159 (as to aocoimts and audit), do
not apply in supervision proceedings. E. 1 of 1903.

But sect. 15 of 1890, which requires the liquidator of a company the
winding-up of which is not concluded within a year after its com-
mencement to send statements of account to the Begistrar of Joint
Stock Companies, and to pay the unclaimed or undistributed assets to
the Companies Liquidation Account, &c., applies to winding-up under
supervision. Stock and Share, ifc. Co., (1894) 1 Ch. 736. See also
Br. 174 et aeq, of 1903. For the practice under the section, see
Section I., Chap. XXIV.

Sect. 139 of 1862 requires the liquidator to convene a meeting of
oontributories every year, and submit an accoimt thereto ; and this
applies even when a supervision order has been made. Wrighfa cate,
5 Ch. 437. See also sect. 142 as to the final account. And as to both
sections, see Section 11., notes under Forms 777 and 778.

Moreover, the liquidator can at any time, on the application of a
party interested, be ordered by the Court to bring in his account. See
Wright's case, 5 Ch. 443.

And it is not unusual for liquidators themselves to apply to pass
and vouch their accounts.



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ACCOUNTS OP LIQUIDATOR. 816

B. 19 of 1862, as to leaving, passing, and verifying a liquidator's
accounts, is annulliBd by E. 203 of 1903.

But R. S. 0. 1883, Ord. L. r. 23, provides: — The accounts of liqui- Piasmgand
dators shall be pttssed and verified in the same manner as is by this veri^u^fir-
order directed as to receivers' accounts.

As to receivers' accounts, see R. S. C, Ord. L. rr. 18 — 22 ; Dan. Oh.
Pr. p. 1446 ei acq. ; and Part III. of this work, 9th ed.. Chap. LXXVI.



On the part of B., of , a creditor of the above-named coy, that Form 808.

A., the liqr of the sd coy, may be ordered within seven days after SummraTto^
service to leave at the office of the Registrar, Bankruptcy Buildings, compel liqni-
afsd, his [MiVcT] account as such liqr, and that the sd A. may be ^hUaoooIm^
ordered to pay the costs of this applicon.



On the part of A. B., of, &o., the liqr of the above-named coy, that Form 809.
he may be at liberty to carry in and pass his account as such liqr Z T

[from the foot of his last account up to the day of , or liquidator for

as the case may he]^ and that all proper directions may be given by j^"*^. ^
the Ot. aoooant.



Let, &c., on the part of N., one of the sureties for A., the liqr of the Form 810.
above-named coy, that the sd N. may be at liberty to attend at his own gommonB by
expense the passing of the accounts of the sd A. as such liqr. imrety for

liber^ to

In special cases, e,g.f where the liquidator has become bankrupt, his burety may •^ ^£ ^
obtain liberty to attend as above. See Birmingham Brewery Co,^ 52 L. J. Ch. 368. account.



Upon the applicon, &o.. Order that the [off] liqr do leave, &c., on or Form 811.
before 5th Feb. 1880, or subsequently within seven days after service q^. .
upon hiTTi of this order, a full, true, and particular account, verified by delivery of
afft, of all moneys received by or allowed to the sd G. as such joint *<»oi^<^
[off] liqr, or any person or persons by his order or to his use, and of
all payments made by him on account of or in respect of the sd coy for
the business transacted from the commencement of the winding-up.
And order him within four days after service to pay into the Bank of
England, to the account of the [off] liqr, 177/. generally on account
of moneys belonging to the sd coy in his hands as such joint [off] liqr.
And costs of applicon reserved. Oakham Collieries^ M. R., 22nd Jan.
1880. B. 68.



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816



WINDING-UP UNDER SUPERVISION.



Form 812.

Form of
acoount.



{Title.)

The first [or as the case may be"] acoount of A., the liqr of the above-
named coy, brought into Ohambers in pursuance of the order dated

the day of , of his receipts, and payments, and allowances as

such liqr, from the day of to the day of .



Eeoeifts.



No. of
Item.


Date when


Names of Persona
from whom reoeived.


OnwhatAcronnt


Amount
receiyed.










£ «. d.



Payments and Allowances.



No. of
Item.



Date when paid
or allowed.



Names of Persons to
whom paid or allowed.



For what purposes
paid or allowed.



Amount paid
or allowed.



£ «. iC



And compare Part m., Form 365.

Summary.

Total amount received on this account £ : :



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 102 of 152)