Charles Mac Naughten Sir Francis Beaufort Palmer.

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

. (page 129 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 129 of 152)
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memorandum together with a printed copy of the substituted memorandum and artidee of
and articles association (as the case may be), shall be deUvered by the company to ^be Begistrar
and conse- of Joint Stock Companies within fifteen days from the date of the order, and the

auences registrar shall register the same, and shall certify under his hand the registration

tiereof . thereof, and his certificate shall be conclusive evidence that all the reqniaitioiis of

this Act with respect to such alteration and the confirmation thereof have been
complied with, and thenceforth (but subject to the provisions of this Act) the
memorandum or deed of settlement so altered shall be the memorandum of associa-
tion or deed of settlement of the company, or, as the case may be, such substituted
memorandum and articles of association shall apply to the company in the same
manner as if the company were a company registered under Part I. of the Com-
panies Act, 1862, with such memorandum and articles of association, and the com-
pany's deed of settlement shall cease to apply to the company.

(2.) If a company makes default in odivering to the registrar any document
required by this Act to be delivered to him the company shall be liable to a penalty
not exceeding ten pounds for every day during whidi it is in default.
Short title and 8. — (1.) This Act may be dted as the Companies (Memorandum of Association)
oonstruction. Act, 1890.

(2.) This Act and the Companies Acte, 1862 to 1886, shall be construed as one
Act, and ma^ be dted collectively as the Companies Acte, 1862 to 1890.

(3.) In this Act the expression "deed of settlement*' indudee any contract of
oo-partnery or other instniment constituting or regulating the company and not
being an Act of Parliament, a royal charter, or letters patent.
{Compare 0. {JT. U,) Act, 1890, «. 36.)



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The Companies (Winding-up) Act, 1890. Act of 1890 1013



THE COMPANIES (WINDING-UP) ACT, 1890.

(53&54VICT. c. 63.)

An Act to Amend the Law relating to the Winding up of Companies
in England and Wales. [18th August, 1890.]

Bb it enacted hv the Queen's most Excellent Majesty, by and with the advice and
consent of the Liords Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority oi the same, as follows :

1. — (1.) The Courts having jurisdiction to wind up companies in England and Jurisdiction
Wales shall be the High Court, the Chancery Courts of the counties palatine of to wiud up
Lancaster and Durham, the County Courts, and the Stannaries Court. companies.

(2.) Where the amount of the capital of a company paid up or credited as paid _^ ^2 et sea,
up exceeds ten thousand pounds, a petition to wind up the company or to contmue ^'
the winding-up of the company under the supervision of the CoiuTt shall be pre-
sented to the High Court, or, in the case of a company situate within the jurisdic-
tion of either of the Palatine Courts aforesaid, either to the High Court or to the
Palatine Court having jurisdiction.

(3.) Where the amount of the capital of a company paid up or credited as paid
up does not exceed ten thousand pounds, and the registered ofaoe of the company
is situate within the jurisdiction of a County Court having jurisdiction under this
Act, a petition to wmd up the company or to continue tine winding up of the
company under Uie supervision of the dourt shall be presented to &at County
Court.

(4.) Provided that where a company is formed for working mines within the
Stannaries and is 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, a petition to wind up
the company or to continue the winding wp of the company unaer the supervision
of the Court shall be presented to the Stannaries Court whatever may be the
amount of the capital of the company and wherever the registered office of the
company is situate.

(5.) The Lord Chancellor may by order exclude a County Court from having
jurisdiction under this Act, and £)r &e purposes of such jurisdiction may attach its
district, or any part thereof, to the High Court or to any other County Court, and
may revoke or vary any such order. In exercising his powers under this section
the Lord Chancellor shall provide that a County Court snail not have jurisdiction
under this Act imless it has for the time being jurisdiction in bankruptcy.

(6.) Every Court having jurisdiction under this Act to wind up a company shall
for tne purposes of that jurisdiction have all the powers of the High Court, and
evenr TOesonbed officer of the Court shall perform any duties which an officer of the
High Court may disdiarge by order of the judge thereof or otherwise in relation to
the winding up of a company.

(7.) Nothing in this section shall invalidate a proceeding by reason of its being
taken in a wrong Gonrt

{See Sttttmariee Court (AhoUHon) Act, 1896.)

2. Subject to gpeneral rules and to orders of transfer made under the authority of Conduct of
the Supreme Court of Judicature Act, 1873, and the Acts amending it, the jurisdic- winding-up
tion of^the High Court under this Act shall, as the Lord Chancellor may from time ^siness in
to time by general order direct, be exercised, either generally or in spotted classes ^*f " Court,
of oases, eit^ by sooh judge or judges of the Chancery Division of the High Court ^^^ ^7 Vict.

o. 66.



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1014



Appendix A,



Transfer of
proceedings,
p. 570



p. 681



Provisions as
to liquidator,
pp. 144, 196

pp. 849, 257,
267



p. 144



Power to
appoint
special
manager,
p. 158



Meeting of
creditors.
p. 880



as the Lord Chancellor may assign to exercise that jurisdiction, or by the judge
who, for the time being, exercises the bankruptcy jurisoiction of the High Court.

8. — (1.) The winding up of a company or any proceedings therein may at any
time and at any stage, and either with or without application from any of tlie
parties thereto, be transferred from one Court to another Court, or may be retained
in the Court in which the proceedings were commenced, although it may not be the
Court in whidh the proceedings ought to have been commenced.

(2.) The powers of transfer ^ven by the foregoing provisions of this section may,
subject to and in accordance with general rules, be exercised by the Lord Chancellor
or by any judge of the High Court having jurisdiction under this Act, or, as
regards any case within the jurisdiction of any other Court, by the judge of that
Court.

(3.) If any question arises in any winding up proceeding in a Coun^ Court or
in the Stannaries Court which all the parties to the proceeding, or which one of
them and the judge of the Court, may desire to have determined in the first instance
in the High (Jourt, the judge shall state the facts in the form of a special case for
the opinion of the High Court, and thereupon the special case and the jproceedinga,
or such of them as may be required, shall be transnutted to the High Court for the
purposes of the determination.

4. — (1.) On an order being made by the Court for winding up a company the
officer hereinafter mentioned shall, by virtue of his office, become the provisional
liquidator of the company, and shall continue to act as such until he or another
person becomes liquidator and is capable of acting as such.

(2.) The said officer shall be the official receiver, if any, attached to the Court for
bankruptcy purposes, or if there is more than one such official receiver, then suc^
one of them as the Board of Trade may appoint, or, if there is no such official
receiver, ttien an officer appointed for the purpose by the Board of Trade. Any
such officer shall for the purpose of his duties under this Act be styled the official
receiver.

(3.) When a person other than the official receiver is appointed liquidator of a
company he shall be styled liquidator and not official liquidator of uie company,
and the provisions of the Companies Acts relating to the official liquidator shall, in
their .application to him, be construed as if the word " official '* were omitted tho'e-
from. Such a person shall not be capable of acting as lic^uidator until he has
notified his appomtment to the registrar of joint stock compames and given security
in the manner prescribed to the satisfaction of the Board of Trade. He shall g^ve
the official receiver such information and such access to and facilities for inspecting
the books and documents of the company, and ^;enerally such aid, as may be
requisite for enabling that officer to perform his duties under this Act.

(4.) If any vacancy occurs in the office of liquidator of a company, the official
receiver shall, by virtue of his office, be the liquidator during the vacancy.

(5.) The official receiver may be appointed by the Court provisional liquidator of
the company at any time after the presentation of the petition and before a winding-
up order has been made.

(6.) Where an application is made to the Court to appoint a receiver on behalf of
the debenture holders or other creditors of a company tne official receiver may be so
appointed.

6. — (1.) Where the official receiver becomes the liquidator of a company, whetiier
provisionally or otherwise, he may, if satisfied that the nature oi the estate or
business of the company, or the interests of the creditors or contributories generally,
require tiie appointment of a special manager of the estate or business of the
company other than himself, apply to the Court to, and the Court m^ on such
appHcation, appoint a spedal manager thereof, during such time as the Court may
direct, with such powers, including any of the powers of a receiver or manager, as
may be entrusted to him by the Court.

(2.) Tlie spedal manager shall give such security and account in such mannw as
the Board of IVade direct.

(3.) The special manager shall receive such remuneration as may be fixed by th«
Court.

6. — (1.) When the Court has made an order for winding op a company the
official receiver shall summon separate meetings of the creditors and contribatories
of the company for the purpose oi —

(a) determining whether or not an application is to be made to the Court for

appointmg a liquidator in the place of the official receiver ; and

(b) determining whether or not an amdioati0n is to be made to the Court for the

appointment of a committee ox inspection to act with the liquidator, and
who are to be the members of saoh committee If appointed.



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The Companies (Winding-up) Act, 1890. Act of 1890 1016

The Court may make anv appointment and order required to give effect to any
such determination, and if there is a difference between the determinations of
the meetings of the creditors and contribntories in respect of any of the matters
mentioned in the ioregoing provisions the Court shall decide the difference and
make such order thereon as the Court may think fit.

(2.) The provisions of the First Schedule to this Act shall, subject to such modifi-
cations as may be made therein by general rules, apply to any meeting summoned
in pursuance of this section.

(3.) In case a liquidator is not appointed by the Court the official receiver shall
be the liquidator of the company.

7. — (1.) Where the Court has made an order for winding-up a company, there Statement
shall be made out and submitted to the official receiver a statement as to the affairs of compauT^s
of the company in the prescribed form, verified by affidavit, and showing the affairs,
particulars of the assets, debts, and liabilities of the company, the names, residences, aqu*
and occupations of the creditors of the company, the securities held by them ^' ^^
respectively, the dates when the securities were respectively given, and such
fuither or other information as may be prescribed or as the official receiver may
require.

(2.) The statement shall bo submitted and verified by one or more of the persons
who are at the time of the winding-up order the directors and by the person who is
at that time the secretary or other chief officer of the company, or by such of the
persons being or having been directors or officers of the company or having taken
part in the formation of the company at any time within one year before the order
for winding up the company, as the official receiver, subject to the direction of the
Court, may require to submit, and verify the same.

(3.) The statement shall be submitted within fourteen days from the date of the
oraer, or within such extended time as the official receiver or the Court may for
special reasons appoint.

(4.) Any person making or concurring in making the statement and affidavit
required by this section shall be allowed, and shall be paid by the official receiver,
ont of the assets of the company, such costs and expenses incurred in and about
the preparation and making of such statement and affidavit as the official receiver
may consider reasonable, subject to an appeal to the Court.

(5.) If any person, without reasonable excuse, makes default in complying with
the requirements of this section, he shall be liable to a fine not exceeding ten pounds
for every day during which the default continues.

(6.) Any person stating himself in writing to be a creditor or contributory of the
oompEuiy shall be entitled by himself or by his agent at all reasonable times, on
payment of the prescribed fee, to inspect the statement submitted in pursuance of
this section, and to a copy thereof or extract therefrom. But any person untruth-
fully so stating himself to be a creditor or contributory shall be guilty of a contempt
of Court and ^all be punishable accordingly on the application of the liquidator or
of the official receiver.

8. — (1.) Where the Court has made an order for winding-up a company, the Report on
official receiver shall, as soon as practicable after receipt of the statement of the windiag-up
company's affairs, submit a preliminary report to the Court — and prooeed-

(a) Ajb to the amount of capital issued, subscribed, and paid up, and the estimated ings there-
amount of assets and liabilities ; and upon.

Cb) If the company has failed, as to the causes of the failure ; and 009

(o) Whether in his opinion further inquiry is desirable as to any matter relating ^*
to the promotion, formation, or failure of the company, or the conduct of
the buEOness thereof.

(2.) The official receiver may also, if he thinks fit, make a further report, or p. 596
further reports, stating the manner in which the company was formed and whether
in his opinion any fraud has been committed by any person in the promotion or for-
mation of the company or by any director or other officer of the company in relation
to the company since the formation thereof, and any other matters which in his
opinion it is desirable to bring to the notice of the Court.

(3.^ llie Court may, after consideration of any such report, direct that any person
who nas tabsn any part in the promotion or formation of the company, or has been
a director or officer of the company, shall attend before the Court on a day appointed
by the Court for that purpose, and be publicly examined as to the promotion or
formation of the company, or as to the conduct of the business of the company, or
as to his conduct and dealings as director or officer of the company.

(4.) The official receiver £all take part in the examination, and for that purpose
may, if specially authorized by the Board of Trade in that behalf, employ a so^oitor
wiui or 'withoai oounseL



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1016



Appendix A.



Committee of
inspection.
p. 849



Power of
Court to
asttess
damages
against delin*



(5.) The liquidator where the official reoeiTer is not the liquidator and any creditor
or contributory of the company may also take part in the examination either per*
sonally or by solicitor or counsel.

(6.) The Court may put such questions to the person examined as to the Court
may seem expedient.

(7.) The person examined shall be examined on oath, and it shall be his dubrto
answer all such questions as the Court may put or allow to be put to him. The
person examined shall at his own cost, prior to such examination, be fnmiflhed with
a copy of the official receiver's report, and shall also at his own cost be entitled to
employ at such examination a solicitor with or without coxmsel, who shall be at
liberty to put such questions to the person examined as the Court may deem just
for the purpose of enabling that person to explain or qualify any answers given by
him. Provided always, that if such person is, in the opinion of the Court, excul-
pated from any charges made or suggested against him, the Court may allow him
such costs as the Comrt in its discretion may think fit. Notes of the examination
shall be taken down in writing, and shall be read over to or by, and signed by, the
person examined, and may thereafter be used in evidence against him. They shall
also be open to the inspection of any creditor or contributory of the company at all
reasonable times.

(8.^ The Court may, if it thinks fit, adjourn the examination from time to time.

(9.) A public examination under this section may, if the Court so directs, and
subject to general rules, be held before any judge ol County Courts, or before any
officer of the Supreme Court, being an official referee, master* r^istrar in bank-
ruptcy, or chief clerk, or before any district regfistrar of the High Court named for
the purpose of the Lord Chancellor, or in the case of companies being wound up
by a Palatine Court, before a registrar of that Court, and the powers of the Court
under sub-sections six, seven, and eight of this section may (except as to costs) be
exercised by the person before whom the examination is held.

9. — (I.) A committee of inspection appointed in pursuance of this Act shall
consist of persons being creditors or oontnbutories of the company or persons hold-
ing general powers of attorney from such persons in such proportions as may be
agreed on by the meetings of creditors and contributories or as, in case of difference,
may be determined by the Court.

(2.) The committee of inspection shall meet at such times as they from time to
time appoint, and, failing such appointment, at least once a month; and the
liquidator or any member of the committee may also call a meeting of the committee
as and when he thinks necessary.

(3.) The committee may act by a majority of their members present at a meeting,
but shall not act unless a majority of tne committee are present at the meeting.

(4.) Any member of the committee may resign his office by notice in wriling
signed by him, and delivered to the liquidator.

(5.) If a member of the committee becomes bankrupt, or compounds or arranges
with his creditors, or is absent from five consecutive meetings of the committee
without the leave of those members of the committee who together with himself
represent the creditors or contributories as the case may be, his office shall thereupon
b^me vacant.

J 6.) Any member of the committee representing creditors may be removed by an
inary resolution at any meeting of creditors of which seven days* notice has
been given, stating the object of the meeting. Any member of the committee
representing contributories may be removed by an ordinary resolution at any
meeting of contributories, of which seven days* notice has been given stating tli^
object of the meeting.

(7.) On a vacancy occurring in the office of a member of the committee, the
liquidator shall forthwith summon a meeting of creditors or of contributories, as
the case may require, for the purpose of filling the vacancy, and the meeting may,
by resolution, re-appoint the same or appoint another creditor or oontributaiy to fill
the vacancy.

(8.) The continuing members of the committee, provided there be not less than
two such continuing members, may act notwithstanding any vacancy in thdr body.

(9.^ If there be no committee of inspection, any act or thing or any direction or
permission by this Act authorijsed or required to be done or given by ihe committee
may be done or g^ven by the Board of Tnde on the application of the liquidator.

10. — (1.) Where in the course of the winding up of a company under the Com-
panies Acts it appears that any person who has taken part in the formation or
promotion of the company, or any past or present director, manager, liquidator, or
other officer of the company, has misapplied or retained or become liable or aooount-
able for any moneys or property of the company, or been guilty of any i



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The Companies (Winding-up) Act, 1890. Act of 1890 1017

or breach of trust in reUtion to the company, the Court may, on the applioation of quent direo-'
the official receiver, or of the liquidator of ihe company, or of any creditor or con- tors, officers,
tributory of the company, examine into the conduct of such promoter, director, and pro-
manager, liquidator, or other officer of the company, and compel him to repay any motm.
moneys or restore any property so misapplied or retained, or for which he has p, 013
become liable or accountable, together with interest after such rate as the Court
thinks just, or to contribute such sums of money to the assets of the company by
way of compensation in respect of such misapplication, retainer, misfeasance, or
breach of trust as the Court thinks just.

(2.) The proyisions of this section shall apply in the winding-up of any company
under the Companies Acts whether the same is being wound up by or subject to
the supervision of the Court or is being wound up voluntarily, and whether the
winding-up commenced before or after the passing of this Act, and notwith-
standii^p that the offence is one for which the offender may be criminally respon-
sible.

{Anmtdtd by C, {W. U.) Act, 1893.)

11.— (1.) An account, called the Companies Liquidation Account, shall be kept Payment of
by the Board of Trade with the Bank of England, and all moneys received by the money into
Board of Trade in respect of proceedings under this Act shall be paid to that Bank of
account. England.

(2.) Every liquidator of a company which is being wound up by order of the p^ 333
Court shall, in such manner and at such times as the Board of Trade, with the con-
currenoe of the Treasury, direct, pay the money received by him to the Companies
liquidation Account at the Bank of England, and the Board of Trade shall furnish
him with a certificate of receipt of the money so paid.

(3.) Provided that, if the committee of infection satisfy the Board of Trade that
for the purpose of carrying on the business of the company, or of obtaining advances,
or for any other reason, it is for the advantage^ of the creditors or contributories
that the liquidator should have an account with any other bank, the Board of
Trade shall, on the application of the cominitteee of inspection, authorise the
liquidator to make his payments into and out of such other bank as tiie com-
mittee may select, and thereupon those payments shall be made in the prescribed
manner.

(4.) If any such liquidator at any time retains for more than ten days a sum
exceeding fifty pounds, or such other amount as the Board of Trade in any particular
case authorise him to retain, then, unless he explains the retention to the satisfaction
of the Board of Trade, he ^all pay interest on the amount so retained in excess, at
the rate of twenty pounds per centum per annum, and shall be liable to disallowance
of all or such part of his remuneration as to the Board shall seem just, and to be
removed from nis office by the Board, and shall be liable to pay any expenses occa-
sioned by reason of his default.

(5.) AW. payments out of money standing to the credit of the Board of Trade in
the Companies Liquidation Account shall be made by the Bank of England in the
prescribed maimer.

(6.) No liquidator of a company which is being wound u]) by order of the
Court shall pay any sums received by him as liquidator into his private banking
account.

12. — (1.) The liquidator of a company which is being wound up by the Court Powers of
may, with the sanction either of the Court or of the committee of inspection, carry liquidator,
on the business of the company, or bring or defend any legal proceeding in the pp 334 267
name and on behalf of the company, or exercise any of the powers conferred by ||!^ 34Q '
section one hundred uid fifty-nine or section one hundred and sixty of the Com- '



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 129 of 152)