Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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companies the registered offices of which are situate within the juriB>-
diction. Section 1 does not give to this Court exclusive jurisdiction ;
the High Court has concurrent jurisdiction with it when the paid-up
capital is over 10,000/., and when such capital does not exceed that
simi the County Courts have exclusive jurisdiction.

As to industrial and provident societies and registered building
societies, see 56 & 57 Vict. c. 39, s. 58 ; and 57 & 58 Yict. o. 47, s. 8.



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JURISDICTION. 26



As to the Palatine Court of Durham.

The juriBdictioii of this Court extends over oompanies *' situate" Durham,
within the County Palatine of Durham. As to the meaning of the
word ''situate," see above. The jurisdiction is not ezclusiye; the
High Court has concurrent jurisdiction where the paid-up capital does
not exceed 10,000/.; and see 52 & 53 Yict. o. 47.



As to the Stannaries Court.

This Court was abolished as from the 1st of January, 1897, by the Stannaries.
Stannaries Court (Abolition) Act, 1896 (59 & 60 Vict. c. 45), but in
order to understand where its jurisdiction has gone it is necessary to
refer to the previous enactments.

Under sect. 81 of the Act of 1862, this Court had jurisdiction over
certain companies, namely, companies '' engaged in working any mine
within and subject to the jurisdiction of the Stannaries." By sect. 28
of the Stannaries Act, 1887 (50 & 51 Yict. c. 43), its jurisdiction was
extended; and by sect. 1 of 1890, the jurisdiction of this Court
was defined in very wide terms, and extended to every ''company
formed for working mines within the Stannaries, and not shown to be
actually working mines beyond the limits of the Stannaries, or to be
engaged in any other undertaking beyond those limits, or to have
entered into a contract for such working or undertaking ; " and in the case
of such a company the Stannaries Court appears to have had exclusive
jurisdiction in winding-up, and that whether the capital was more or
less than 10,000/., and whether the registered office of the company was
situate within the Stannaries or elsewhere. Nevertheless, notwith-
standing the generality of the concluding words of paragraph 4 of
sect. 1 of 1890, the Stannaries Court did not, it is apprehended, under
that section, obtain jurisdiction over any company, unless the regis-
tered office of the company was situate in England or Wales. See
sect 31 of 1890.

In New Terras Tin Mining Co., (1894) 2 Ch. 344, it was held that
where a company was formed for working mines within the Stannaries,
" or elsewhere in England," but was not shown to be actually working
mines beyond the limits of the Stannaries, the Stannaries Court was
the Court having jurisdiction to wind it up.

By the Stannaries Court (Abolition) Act, 1896 (see infra), and an
order made thereunder on Dec. 16th, 1896, the jurisdiction of the
Stannaries Court has been transferred to the County Courts of
Cornwall. See p. 706, infra.



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26 WINDING-UP BY THE COURT. [ChAP. I.

As to the County/ Courts,

Connty Under the Act of 1862, the County Courts had no jurisdiction to wind

up companies; but under sects. 44 — 46 of the Companies Act, 1867
(now repealed by the Act of 1890), power was given to the High Court
to transfer the winding-up to a County Court, and occasionally orders
for transfer were made accordingly. The County Courts had also
exclusive jurisdiction to wind up building societies under the Building
Societies Act, 1874, and industrial and provident societies. County
Courts, with few exceptions, were by the Act of 1890 invested with full
winding-up jurisdiction as regards a company with a capital, paid up
or credited as paid up, which does not exceed 10,000/., and a regis-
tered office situate within the jurisdiction of the County Court. They
have jurisdiction, limited by reference to the amount of paid-up capital,
in the cases of industrial and provident, and registered building
societies. See 56 & 57 Vict. c. 39, s. 58 ; 57 & 58 Vict, c. 47, s. 8, and
infra, Chap. LII., and Appendix A.

The County Court is invested, for the purpose of its winding-up
jurisdiction, with all the powers of the High Court, and is not there-
fore a Court to which a prohibition can be granted. New Far Con-
sols (2), (1898) 1 Q. B. 669. And BeeNeio Far Consols, (1898) 1 Q, B.
573 ; Skinner v. Northallerton C C Judge, (1898) 2 Q. B. 680.

And by the Stannaries Court (Abolition) Act, 1896, s. 1 (1), "On
the commencement of this Act" — ^the 1st Jan. 1897 — "the Court of
the Vice-Warden of the Stannaries shall cease to exist, except for the
purpose of continuing and concluding proceedings pending in that
Court at that date, and as from that date all jurisdiction and powers
of the said Court and its officers shall, except as aforesaid, be trans-
ferred to and vested in such of the County Courts as the Lord Chancellor
may by order direct, and be exercised subject to and in accordance
with rules of Court for regulating the procedure in County Courts.
(2) Provision may be made by order of the Lord Chancellor . . , for
transferring to a County Court any proceedings pending in the said
Court at the commencement of this Act."

By an order of the Lord Chancellor, dated the 16th December,
1896, the jurisdiction of the Stannaries Court is transferred to the
County Courts of Cornwall. As to the practice, see County Court
Eules, 1903, infra, p. 706.

An order of the Lord Chancellor of November 29, 1890, excluded
from having jurisdiction under the Companies (Winding-up) Act,
1890, County Courts then excluded from bankruptcy jurisdiction, and
the district of any such County Court was, for the purposes of juris-
diction under the Act of 1890, attached to the Court to which that
district was attached for the purposes of jurisdiotion in bankruptcy.

But the order of November 29, 1890, and other orders amending it



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JURISDICTION. 37

were annulled by the Ooiinty Courts (Bankruptcy and Companies
Winding-up) Jurisdiction Order, 1899, which points out what County
Courts have now winding-up jurisdiction. The districts are specified
in the County Courts (Districts) Order in Council, 1899. See further,
as to these orders. Chap. TJT.

The Metropolitan County Courts being excluded from bankruptcy
jurisdiction (Bankruptcy Act, 1883, ss. 92, 93), the High Court has
jurisdiction to wind up companies which, but for such exclusion, those
County Courts would have had jurisdiction over. Court Bureau^
W. N. (1891) 15. This is not altered by the orders of 1899.



General Provision as to Jurisdiction.

Attention should be directed to para. 7 of sect. 1 of 1890, iuprat p. 23. Wrong CJonrt.
The words in that paragraph are identical with those of sect. 95 (3)
of the Bankruptcy Act, 1883, under which it has been held that if an
order is made without objection, it is not invalidated by the fact of
its being made by the wrong Court ; but that if the petition is wilfully
presented to the wrong Court, this is ground for dismissing it. Ex
parte May^ Re Brightmore^ 14 Q. B. D. 37 ; Ex parte French^ Re French,
24 Q. B. D. 63. In case of inadvertence the proceedings can after-
wards be transferred to the proper Court. Ex parte French ^ uhi supra;
BuUer and Bassett Co., 35 S. J. 260; Milford Haven Shipping Co.,
W. N. (1895) 16.

As to transferring winding-up proceedings, see Chap. XL.



Limits of Jurisdiction.

The Acts of 1862 to 1900 do not contain any provision like sect. 102 Limlte.
of the Bankruptcy Act, 1883, empowering the Court to decide ''all
questions which may arise in any case of bankruptcy which the Court
may deem it expedient or necessary to decide for the purpose of doing
complete justice or making a complete distribution of property in any
such case."

The Acts give the Court jurisdiction over outsiders in specified
cases, and the jurisdiction is confined to those cases. Hence an agree-
ment between the company and an outsider cannot be impeached in
the winding-up ; an action must be brought. Imperial Bank of China,
1 Ch. 339. And although sect. 100 of the Act of 1862, and sect. 10 of
the Act of 1890, give jurisdiction in specified cases, the jurisdiction is
limited to such cases. Ex parte Hawkins, 3 Ch. 787 ; Ilkleg Hotel Co,,
(1893) 1 O. B. 248 ; Carter's case, 31 C. D. 496 ; Feltom's Executors*



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2S WINDING-UP BY THE COURT. [ChAP. I.

ca$ej 1 Eq. 219; Bangor Sf North Wales, 8fc, Protection Association^
W. N. (1899) 93. So, too, a secured creditor is primd facie an out-
sider. Lhyd V. David Lloyd Sf Co,, 6 C. D, 339 ; Gaudet Freres Co.,
12 0. D. 882. Where, as regards a particular matter, there is no
jurisdiction in the winding-up, it is necessary to resort to an action —
e.g., as to the amount of remuneration payable to a receiver appointed
under a power in debentures issued by the company. Vimbos, Ltd.,
(1900) 1 Oh. 470— and this action can be transferred to the winding-up
judge.



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29



CHAPTER n.

COMMON FORMS AND GENERAL PROCEDURE.



Forms.

Bt "R, 203 of 1903 the forms prescribed by rules and orders speoified
in the schedule to the Bules of 1903 (viz., those mentioned supra,
p. 11) were reyoked and annulled.

B. 8 of 1903.— (1) The forzoB in the Appendix [to the Boles of 1908], where
applicable, and where they are not applicable formB of the like character, -with such
rariations as drcomstanoes may require, shall be nsed. Where saoh forms are
appUcable, any costs occasioned by the use of any other or more prolix forms shall
be borne by or disallowed to the party using the same, unless the Court shall
otherwise direct.

(2) FroYided that the Board of Trade may from time to time alter any forms
which relate to matters of an administrative and not of a judicial character, or
substitute new forms in lieu thereof. Where the Board of Trade alters any form,
or substitutes any new form in lieu of a form prescribed by these rules, such
altered or substituted form shall be published in the London Gazette, [Formerly
R. 3 of 1890. As to effect of neglect to publish, see Jonee t. Hobson, (1901)
1 Q. B. 673.]

B. 198 of 1908.— The Board of Trade may from time to time issue general orders
or regulations for the purpose of regfulating any matters under the Act or the
rules which are of an administrative and not of a judicial character. Judicial
notice shall be taken of any general orders or regulations which are printed by the
King's printers, and purport to be issued under the authority of the Board of
Trade. [Formerly R. 176 of 1890.]



General Practice of Supreme Court.

E. 801 of 1908.— In all proceedings in or before the Oourt, or any judge,
registrar, 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 rules, the practice,
tnrocedure, and regulations shall, unless the Oourt otherwise in any special case
directs, '



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80



WINDING-UP BY THE COUET. [ChAP. II.

In thb High Coust, be in accordance with the rules of the Supreme Court and
practice of the High Court ; and

In a Faiatinb Coubt and County Cottbt, in accordance, as far as practicable,
with the existing rules and practice of the Court in proceedings for the administra-
tion of assets bj the Court.

The jurisdiction and powers of the Stannaries Court are now
transferred to the County Courts of Cornwall, and are tobe *' exercised
subject to and in accordance with rules of Court for regulating the
procedure in County Courts." Stannaries Court (Abolition) Act, 1896,
s. 1 ; order of L. C. of 16th Dec. 1896, and see E. 6 of the County
Court (Stannaries Jurisdiction) Eules, 1897, supra, p. 16.



IntituUng Companies Acts.

See B. 11 of 1903 (note to Form 1) as to intituling proceedings in
the High Court, ''In the Matter of the Companies Acts, 1862 to
1900." By sect. 2 of the Short Titles Act, 1896 (59 & 60 Vict. c. 14),
it is provided as follows : —

(1.) Each of the groups of Acts mentioned in the Second Schedule to this Act
may, without prejudice to any other mode of citation, be dted by the ooUectiTe
title therein mentioned in that behalf. (2.) If it is provided that any Act passed
after this Act may, as to the whole or any part thereof, be cited with any of the
groups of Acts mentioned in the Seoond Schedule to this Act,* or with any group of
Acts to which a collective title has been g^ven by any Act passed before this Act,
that group shall be construed as including that Act or part, and, if the collective
title of the group states the first and last years of the group, the year in which that
Act is passed shall be substituted for the last year of the group, and so on as often
as a subsequent Act or part is added to the group.

In the Second Schedule to the Act the collective title ** The Com-
panies Acts, 1862 to 1893," is given to the following statutes : — The
Companies Act, 1862, the Companies Seals Act, 1864, the Companies
Act, 1867, the Joint Stock Companies Arrangement Act, 1870, the
Companies Act, 1877, the Companies Act, 1879, the Companies Act,
1880, the Companies (Colonial Begisters) Act, 1883, the Companies
Act, 1886, the Companies (Memorandum of Association) Act, 1890, the
Companies (Winding-up) Act, 1890, the Directors' Liability Act, 1890,
and the Companies (Winding-up) Act, 1893.

By sect. 36 of the Companies Act, 1900, that Act may be cited
with the Companies Acts, 1862 to 1898. Those Acts form the group
of Acts mentioned in the Second Schedule to the Short Titles Act,
1896, and they and the Act of 1900 may therefore, irrespective of
B. 11 of 1903, tn/ra, be cited in winding-up proceedings as "The
Companies Acts, 1862 to 1900." The Act of 1900 contains several



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COMMON FORMS AND GENERAL PROCEDURE.



31



proviaions with reference to winding-up, wliich are mentioned suproy
Chap. I.



Form 1.

General title
(High Court).



Form 1 of
1903.



In the High Court of Justice. No. of 19-

Companies (Winding-up).

Mr. Justice .

In the matter of the Cos Acts, 1862 to 1900,
and
In the matter of the [insert full name of company/'] Coy, Limtd.

B. 11 of 1908 provides that — (1.) Every prooeediag in a winding-up matter to Assignment
-which these rules apply shall be dated, and shall with any necessary additions be to registrar,
intituled as follows : —

In the Court.

Companies (Winding-up).

In the matter of the Companies Acts, 1862 to 1900, with the name of the
matter to which it relates. Numbers and dates may be denoted by figures.

(2.) The first proceeding in every winding-up matter shall have a distinctive
number assigned to it in the office of the registrar, and all proceedings in any
matter subsequent to the first proceeding shall bear the same number as the first
proceeding. [Formerly R. 6 of April, 1892.] Form 1 of 1903 requires the judge's
name to be stated.

When a winding-up is transferred from one Court to another, it is to receive a
new distinctive number. R. 46 of 1903 [formerly R. 14 of 1890].

In the winding-up of industrial and provident societies insert first, <* In the
matter of the Industrial and Provident Societies Act, 1893, and." See sect. 68 of
the Industrial and Provident Societies Act, 1893 (56 & 57 Vict. c. 39).

In the winding-up of a building society under the Act of 1874 insert first, " In
the matter of the Building Societies Acts, and.*' See sect. 29 of the Building
Societies Act, 1894 (57 & 58 Vict. c. 47).



In the Chancery of the County Palatine of Lancaster.
[Manchester] District.

Companies (Winding-up).

In the matter of the Cos Acts, 1862 to 190.0,

and

In the matter of the '- Coy, Limtd.

B. 11 of 1903, mpra^ applies to all Courts having winding-up jurisdiction.



Form 2.

General title
(Lancaster
Palatine
Court).



In the Chancery of the County Palatine of Durham.
Companies (Winding-up).

In the matter of the Gob Acts, 1862 to 1900,

and

In the matter of the Coy, Limtd.

See B. 11 of 1903, supra,

Ab to building 4U]d industrial sodeties, see notes to Form 1.



Form 3.

General titie
(Durham
Palatine
Court).



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82 WINDING-UP BY THE COURT. [ChAP. II.

Form 4. In the County Oonrt of , holden at .



General title
(County
Court).
Form 2 of
1903.



No. of 19—.

In the matter of the Cos Acts, 1862 to 1900,

and

In the matter of the [insert Jull name of company'] Coy, limtd.

See B. 11 of 1903, ittpra,

Ab to registered btiildmg Bodoties and indostrial and provident societies, see
Form 5, and notes to Form 1.



Form 6, In the County Court of , holden at .

General title Companies (Winding-up).

(BuUding and In the matter of the Building Societies Acts

l^e^! C^'' -^ *^® matter of the Industrial and Provident Societies Act, 1893],

and

In the matter of the Cos Acts, 1862 to 1900,

and

In the matter of the Society.

See infraf pp. 713 and 716.



General title

(Stannaries

Cases).



Form 5a. in the County Court of Cornwall, held at Truro (Stannaries Jurisdiction).
Companies (Winding-up).

In the matter of the Cos Acts, 1862 to 1900,

and

In the matter of the Coy, Limtd.

As to the aboTS title, see R. 10 of County Courts (Stannaries Jurisdiction) Rules,
1897, and R. 11 of 1903, supra. See also infra^ p. 706.

The Stannaries Court is now abolished, and its jurisdiction is Tested in the
County Courts of Cornwall. See Stannaries Court (AboUtion) Act, 1896 ; order of
L. C. 16th Deo. 1896.



Office of
registrar in
High Court.



Proceedings to be Attached to Kegistrars.

B. 4 of 1908. — (1.) All proceedings in the winding-up of companies in the High
Court shall from time to time be attached to one or more of the registrars, who
shall, together with the necessary clerks and officers, and subject to the Acts
and rules, act under the gfeneral or special directions of the judge.

(2.) Every other regpistrar may act for and in place of such registrar as above
mentioned in all proceedings under the Acts and rules, including the holding of
public examinations, and when so acting such other registrar shall be deemed to be
the registrar for the purposes of the Acts and rules.

(3.) In every cause or matter within the jurisdiction of the judge, whether by
Tirtue of the Acts or by transfer or otherwise, the reg^stimr shall, in addition to his



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83



COMMON FORMS AND GENERAL PROCEDURE.

powers and duties under the rules, have all the powers and duties of a master,
registrar or taxing master.

[Suh-clauses 1 and 2 are taken from R. 2 of April, 1892. Suh-olause 3 is taken
from R. 2 of Aug. 1892.]

By R. 2 of 1903, " * registrar' means in the High Court any of the registrars in
bankruptcy of the High Court, and any person who shall be appointed to fill the
office of registrar under these rules, and where a winding-up of a company is in
the District Registry of Liverpool or Manchester means the district registrar ; and
in a County Court where there are joint registrars means either of such registrars,
or a deputy reg^istrar, and in any Court other than the High Court means 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 registrar or master.' '

Quare, whether R. 4 (3) of 1903 is confined to registrars in proceedings in thfi
High Court.

By R. 2 of 1903 " ' judge ' means in the High Court the judge who for the time
being exeroises the jurisdiction of the High Court to wind up companies ; and in
any other Court the judge thereof, or officer who exercises the powers of the judge
thereof."



File of Proceedings.

In the Sigh Court.

B. 16 of 1003. — ^All petitions, affidavits, summonses, orders, proofs, notices,
depositions, biUs of ooets, and other proceedings in the High Court in a winding-np
matter shall be kept and remain of record in the office of the registrar in one con-
tinuous file, and no proceeding in any winding-up matter shall be filed in the
Central Office. [Formerly R. 11 of April, 1892.]

B. 76 (2) of 1908. — The notes of the depositions of a person examined under Filing and
sect. 115 of the Companies Act, 1862, or under any order of the Court before custody of
Hie Court, or before any officer of the Court, or person appointed to take such ^^^^J^^'^
an examination (other than the notes of the depositions of a person examined private
at a public examination imder sect. 8 of the Act of 1890), shall not be filed, examinations,
or be open to the inspection of any creditor, contributory, or other person,
except the official receiver or liquidator, unless and until the Court shall so
direct, and the Court may from time to time g^ve such general or special direc-
tions as it shall think expedient as to the custody and inspection of such notes,
and the furnishing of oopies of or extracts therefrom. [Formerly R. 1 of
November, 1895.]

This provision was made in consequence of Standard Gold Mining Co., (1895)
2 Ch. 645.

Depositions taken under sect. 115 of 1862 are generally treated as private, and
the Court will not order them to be shown in the absence of some clear reason for
ordering their inspection. MerchanU^ Firs Ofict, (1899) 1 Ch. 432.

As to imposing undertakings not to disclose information obtained at examinations,
see London and Northern Bank^ Archer's ease, W. N. (1901) 236, 247 ; Ibid. Haddock's
ease, (1902) 2 Ch. 73.

The files are kept at Room 88, but applications for inspection are made in
Room 66, Bankruptcy Buildings, Carey Street, W.C.

As to stitching margins in documents to be filed, see Practice Note of 15th
February, 1893, in Appendix.

P. D



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34



WINDING-UP BY THE COURT. [ChAP. II.



Use of file by
Board of
Trade and
official
receiver.



Form 6.

Application
for inspection
of file (High
Court).



In Courts other than High Court.

B. 17 of 1903.— In Courts other than the High Court a file of proceedings in
eyerj winding-up matter shall be kept, on which, subject to the directions of the
Court, all petitions, affidavits, summonses, orders, proofs, notices, depositions, and
other proceedings in the matter shall be placed and remain of record as far as
possible in continuous order. [B. 31 of Apnl, 1892, amended.]

And see R. 76 of 1903, tupra.

The words '' subject to the directions of the Court " are new.

Defacing Stamps,

B. 21 of 1908.— Every officer of a Court who shall receive any doonment to which
an adhesive stamp shall be affixed, shall immediately upon receipt of the doonment
deface the stamp thereon, in the High Court by perforation, or in such manner as
the Commissioners of Inland Revenue may from time to time direct, and in any
other Court by writing partly on the stamp and partly on the document the name
of the matter, or in such other manner as the Commissioners of Inland Revenue
may from time to time direct, and no such document shall be filed or delivered until
the stamp thereon shall have been defaced in manner aforesaid ; and it shall be the
duiy of the party presenting or receiving such document to see that the defacement
hereby prescribed has been duly made.

This rule is new in winding-up.

Inspection of File in all Courts.

B. 19 of 1908. — Every person who has been a director or offioer of a company
which is being wound up, and every duly authorised offioer of the Board of Trade,
shall be entitled, free of charge, and every contributory and every creditor whose
claim or proof has been admitted, shall be entitled on payment of a fee of one
shilling for each hour or part of an hour occupied, at all reasonable times, to in-
spect the file of proceedings and to take copies or extracts from any document
therein, or to be furnished with such copies or extracts at a rate not exoeeding
fourpence per folio of seveniy-two words. [R. 32 of April, 1892, varied.]

This must be read subject to R. 76 of 1903, supra,

B. 20 of 1908. — ^Where, in the exercise of their functions under the Acts or rules,
the Board of Trade or the official receiver requires to inspect or use the file of pro-
ceedings, the registrar shall (unless the file is at the time required for use in Court
or by him), on request, transmit the file of proceedings to the Board of Trade or
official receiver, as the case may be. [R. 33 of April, 1892, varied.]



No.

- day of



of.



19—.



19—.



The High Court of Justice.
Companies (Winding-up).

Re .

Application for inspection of file of proceedings in this matter.

I appear for .

Name of Solicitor .



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 12 of 152)