Charles Mac Naughten Sir Francis Beaufort Palmer.

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

. (page 136 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 136 of 152)
Font size
QR-code for this ebook


liquidator or special managfer, and make such order as to costs as the Court shall
think fit.

(S.) Where an order is made under this rule rescinding an order for the appoint- -
ment of or removing a liquidator, the Court may direct Uiat another liquidator is to
be appointed, and thereupon the same meetings shall be summoned and the same
proceedings may be taken as in the case of a first api)ointment of a liquidator.

PuBUO Examination (p. 596).

62. A report made by the official receiver pursuant to section 8 of the Act of Eoport of official
1890, shaH state in a narrative form the facts, and matters which the official receiver Sf?^'^ *** ^
desires to bring to the notice of the Court, and his opinion as required by the said '^j^
section. P* ^^

63. The official reoeiver may apply to the Court to fix a day for the consideration Appointment of
of the report, and on such application tbe Court shall appoint a day on wMdi the ^® ^^F ^°:
report shall be considered. w^!'°''

64. The consideration of the report shall be before the judge of the Court personally ConaidGration of
in Chambers, and the official receiver shall personally, or by counsel or solicitor, J^eport.
attend the consideration of the report, and g^ve the Court any further information

or explanation with reference to the matters stated in the report which the Court
may require.

65. Where the judge makes an order under section 8 of the Aot of 1890, directing Procedure con-
any person or persons to attend for public examination : — ^"^*^ ^^ Mi

(a) The examination shall be held before the judge. Provided that in the SxamiiSion.
High Court the judge may direct that the whole or any part of the
examination of any such person or persons be held before the reg^istror, or
before any of the persons mentionea in sub-section 9 of the said section.

{b) The judge may, if he thinks fit, either in the order for examination, or by
any subsequent order, give directions as to the special matters on which
any such person is to be examined.

(c) Where on an examination held before the registrar, or one of the persons
mentioned in sub-section 9 of the said section, he is of opinion l^at such
examination is being unduly or unnecessarily protracted, or for any other
sufficient cause, he may adjourn the examination of any person, or any
part of the examination, to be held before the judgfe.

66. Upon an order directing a person to attend for public examination being AppUcation f or
made, the official receiver shall apply for the appointment of a day on which the Saminiioni
public examination is to be held. ^^^

67. A day and place shall be appointed for holding the public examination, and Appointment of
notice of the day and place so appomted shall be given by the official reoeiver to the time and place
person who is to be examined by sending such notice in a registered letter addressed for public ex-
to his usual or last known address. ammation.

p. 161
68. — (I .) The official Reiver shall give notice of the time and place appointed for Notice of imblio
holding a public examination to the creditors and contributories by advertisement in examinati^ to
such newspapers as the Board of Trade from time to time direct, or in default of any creditors and
such direction as the official receiver thinks fit, and shall also forward notice of the «>ntributoriee.
appointment to the Board of Trade to be gazetted.

(2.) Where an adjournment of the public examination has been directed, notice
of the adjournment shall not, imless otherwise directed by the Court, be advertised
in any newspaper, but it shall be sufficient to publish in the Gazette a notice of the
time and place fixed for the adjourned examination.

69. — (1.) If any person who haa been directed by the Court to attend for publio Befanlt in
examination fails to attend at the time and place appointed for holding or pro- ^^^^^'^^i'V*
eroding with the same, and no good cause is shown by him for such failure, or if



Digitized by



Google



1052



Appe»dix B.



Wairantsof
MreBt.



Notes of exami-
nation to be
filed.



before the day appointed for the examinatioii the official reoeiyer satufies the
Court that saoh person has absconded, or that there is reason for believing that he
is about to abscond with the view of ayoidinff examination, it shall be lawful for
tbe Court, upon its being proyed to the satluaotion of the Court that notice of the
order and of the time and place appointed for attendance at the public examination
was duly served, without any further notice, to issue a warrant for the airwt of
the person required to attend, or to make such other order as the Court shall
think just.

(2.) A warrant of arrest issued by the High Court under this rule shall be issued
in the Central Office of the Supreme Court pursuant to an order of the Court directing
such issue.

70. The notes of eyery public examination shall, after being signed as required
by tbe Act of 1890, be filed with the registrar.



Applicafaon
against delin*
<iuent directors,
offioen,and
promoten.



Notice of
application.



TTae of deposi-
tions taken at
public exami-
nations.



Paooxedinos AOAnrsT DEUNauENT BiBEGTOBS, Pboxotebs, Aim Offioebs (p. 61S).

71. — (1.) An application under section 10 of the Act of 1890, shall in any Court
other than the Hiffh Court be made by motion to tbe Court. In the High Court
the application shall be made by a summons returnable in the first instance in
Chambers, in which summons shall be stated the nature of the declaration or (nder
for which application is made, and the grounds of the application, and which
summons, unless otherwise ordered by the Court, shall be served in the manner in
which an origpinating summons is required W the Rules of the Supreme Court to be
served on every person against whom an order is sought, not less than eight davs
before the day named in the sunmions for hearing the application. Where the
application is made by the official receiver or liquidator he may make a r^rt to
the Court stating any facts and information on which he prooeeds which are
verified by affidavit, or derived from sworn evidence in the proceedings. Where
the application is made by any other person it shall be supported by affidavit to be
filed by him.

(2.) On the return of the summons the Court may give such directions as it shall
think fit for the hearing of the summons before the judge in Court, the taking of
evidence wholly or in part by affidavit or orally, and the cross-examination eitJier
before the judg^e on tne hearing in Court or in Chambers of any deponents to
affidavits in support of or in opposition to the application.

72. Where the application is made by motion, notice of the intended motion
shall be served on every person against whom an order is sought, not lees than
eight days before the day named in the notice for hearing the motion. A copv of
every report and affidavit intended to be used in support of the motion shall bo
served on every person to whom notice of motion is g^ven not less than four dajs
before the hearing of the motion.

73. Where in the course of the proceedings in a winding-up by the Court an
order has been made for the public examination of persons named in the <»der pur-
suant to section 8 of the Act of 1890, and it appears from the eTamination that the
persons examined, or some of them, have misapplied, or retained, or become liable,
or accountable for moneys or property of the company, or been guilty of misfeasance
or breach of trust in relation to the company, then in any proceedings subsequently
instituted under section 10 of the said Act, for the purpose of examining into the
conduct of the said persons, or any of them, and compelling repayment or restoration
to the company of any moneys or property, or contribution by way of oompensatioo
to the assets of the company by such persons or any of them, the verified notes of
the examination of each person who was examined under the order shall, subject as
hereinafter mentioned, and to any order or directions of the Court as to the manner
and extent in and to which the notes shall be used, and subject to all just exceptions
to the admissibility in evidence against any particular person or persons of any of
the statements contained in the notes of the examinations, be adnussible in evidence
against any of the persons agrainst whom the application is made who, under
section 8 of the said Act, and the order for the public examination, was or had the
opportunity of being present at and taking part in the examination. Provided that
before any such notes of a public examination shall be used on any such application,
the person intending to use the same shall, not less than fifteen days before the day
appointed for hearing the application, g^ve notice of such intention to each person
against whom it is intended to use such notes, or any of them, specifying ^e notes
or parts of the notes which it is intended to read against him, and furnish him with
oopies of such notes, or parts of notes (except notes of the perooo^s own depoatioof),



Digitized by



Google



Companies Winding-up Rules, 1903. Bnles of 1903 1053

and proTided also that every person against whom the application is made shall be
at liberty to oross-examine or re-examine (as the case may be) any person the notes
of whose examination are read, in all respects as if such person had made an
affidavit on the application.

Wpfnessbs akd DBFOsmoiro (p. 148).

74. If the Court or the officer of the Gonrt before whom any examination Shorthand
under the Acts and Rules is directed to be held shall in any case, and at any ^^o^-
stage of the proceedings, be of opinion that it would be desirable that a person
(other than the person before whom an examination is taken) should be appointed
to take down the evidence of any person examined in diorthand or otherwise, it
shall be competent for the Court or officer aforesaid to make such appointment.
The person at whose instance the examination is taken shall nominate a person for
the purpose, and the person so nominated shall be api)ointed, unless the Court or
officer holding the examination shsJl otherwise order. Every person so appointed
shall be paid a sum not exceeding one guinea a dav, and a sum not exceedmg 8^.
per folio of 90 words for anv transcript of the evidence that may be required, and
such sums shall be paid by the party at whose instance the appointment was made,
or out of the assets of the company as may be directed by the Court.

75. — (1.) If a person examined before a registrar or other officer of the Court Committal of
who has no power to commit for contempt of Court, refuses to answer to the «»^>"n«cioii8
satisfaction of the registrar or officer any question which he may allow to be put, ^^*
the registrar or officer shall report such refusal to the judge, and upon such report
being made the person in default shall be in the same position, and be dealt with in
the same manner as if he had made default in answering before the judge.

(2.) The report shall be in writing, but without affidavit and shall set forth the
question put, and the answer (if any] given by the person examined.

(3.^ The registrar or other officer shful, before the conclusion of the examination at
which the default in answering is made, name the time when and the place where
the default will be reported to the judge, and upon receiving the report the judge
may take such action thereon as ne wall think fit. If the judge is sitting at the
time when the default in answering is made, such default may be reported
immediately.

76. — (1.) The official receiver may attend in person, or by an assistant official I^poritions
receiver, any examination of a witness under section 1 15 of the Companies Act, 1862, S^Sationi.
on whosesoever application the same has been otdered, and may take notes of the oao
examination for ms own use, and put such questions to the persons examined as the ^'
Court may allow.

(2.) The notes of the depositions of a person examined under section 115 of the pp. 83, 166
Companies Act, 1862, or under any order of the Court before the Court, or before
any officer of the Court, or jperson appointed to take such an examination (other
than the notes of 'the depositions of a person examined at a public examination
xmder section 8 of the Act of 1890) shsdl not be filed, or be open to the inspection of
anv 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 g^eral or special directions as it shall think expedient as to the custody
and inspection of such notes and the furnishing of copies of or extracts therefrom.

AbBANOEXENTB with CbBDITOBS and CoNTBIBXTTOBIES in a WnrDISQ'TTF BT THE

COUBT.

77. In a winding-up by the Court if application is made to the Court to sanction Beport bj
any compromise or arrangement the Court may, before giving its sanction thereto, °?Sij^^*'
hear a report by the officicd receiver as to the terms of the scheme, and as to the mentolmd"
conduct of the directors and other officers of the company, and as to any other oompromiset.
matters which, in the opinion of the official receiver or the Board of Trade, ought
to be brought to the attention of the Court. The report shall not be placed upon
the file, unless and until the Court shall direct it to be filed.

COLLBOnON AND DiSTBIBtTTION OF AflSBTB IN A WlNDlNa-XrP BT THB CoUBT (p. 811).

78.— (1.) The duties imposed on the Court by section 98 of the Companies Act, ^^S,^"*A
1862, in a winding-up by the Court with regfara to the collection of the assets of ooinpimy'BaM«ts
the company and the application of the assets in discharge of the company's byuq^dator.
liabilities shall be discharged by the liquidator as an officer of the Court subject to pp. 947 5^3
the control of the Court. *

P. 3 Y



Digitized by



Google



1054



Appenddc B.



FQwer of liqui-
dator to rpqoire
dell Teiy of
property.

pp. 269, 848



(2.) For the purpose of the diaohargfe by the liquidator of the duties impoeed hf
section 98 of uie Companies Aot, 1862, as yaried by section 13 of the Act of 1890,
and the last preceding Role, the liquidator in a winding-up by the Court shall for
the purpose of acquiring or retaining possession of the pr op erty of the oomnany, be
in the same position as if he were a reodver of the property app<nnted by the High
Court, and the Court may, on his application, enforce such acquisition or retentioii
accordingly.

70. The powers conferred on the Court by section 100 of the Companies Act,
1862, shall oe exercised by the liquidator. Any contributory for the time being on
the list of contributories, trustee, receiver, banker or agent or officer of a company
which is being wound up under order of the Court shall, on notice from the liqui-
dator and within such time as he shall by notice in writing require, pay, ddiTer,
convey, surrender or transfer to or into the hands of the liquidator any sum of
money or balance, books, papers, estate or effects which happen to be in his hands
for the time being and to which the company is primdfaeie entitled.



Liquidator to
settle list of
contributorieB.
p. 508



Appointment of
time and place
for settlement
of list.

p. 508

Settlement of
list of con-
tributories.

p. 508

Notice to
contributorieB.



p. 508



Application to
the Court to
vary the list.

p. 508



Variation of or
addition to list
of contribu-
tories.

p. 508

Oallaby
liquidator.



p. 526



List of Cowt b ibpt obiib nr a WnfDnro-up bt thb Coubt (p. 408).

80* The liquidator shall with all convenient speed after his appointment settle
a list of contributories of the company, and shall appcnnt a time ana place for that
purpose. The list of contributories shaU contain a statement of the addreas of, and
the number of shares or extent of interest to be attributed to each contributory, and
shall distinguish the several classes of contributories. As regfards repanesentatire
contributories the liquidator shall so far as practicable observe the requirements of
section 99 of the Companies Act, 1862.

81. The liquidator shall give notice in writmg of the time and place appointed
for the settlement of the list of contributories to eveiy person whom he proposes to
include in the list, and shall state in the notice to each person in what character and
for what number of shares or interest he proposes to include such person in the list.

82. On the day appointed for settlement of the list of contributories the liqui-
dator shall hear any person who objects to being settled as a contributory, and alter
such hearing shall finally settle the list, which when so settled shall be the list of
contributories of the company.

88. The liquidator shall forthwith give notice to every person whom he has
finally placed on the list of contributories stating in what character and for what
number of shares or interest he has been placed on the list, and in the notice inform
such person that any application for the removal of his name from the list, or for
a variation of the list, must be made to the Court by summons within 21 days from
the date of the service on the contributory or alleged contributory of notice of the
fact that his name is settled on the list of contributories.

84. — (1.) Subject to the power of the Court to extend the time or to allow an
application to be made notwithstanding the expiration of the time limited fc^ that
purpose, no application to the Court by any person who objects to the list of con-
tributories as mially settled by the liquidator shall be entertained after the exjiiration
of 21 days from the date of the service on such person of notice of the settlement of
the list.

(2.) The official receiver shall not in any case be personally liable to pay any
costs of or in relation to an application to set aside or vary his act or dedsioa
settling the name of a person on the list of contributories of a company.

86 . The liquidator may from time to time vary or add to the list of contributories,
but any such variation or addition shall be made in Uie same manner in all respects
as the settlement of the orig^inal list.

Calls (p. 586).

86. The powers and duties of the Court in relation to making calls upon oontri*
butories conferred by section 102 of the Companies Act, 1862, shall and may be
exercised, in a winding-up by the Court, by the liquidator as an officer of the dourt
subject to the provisions of section 13 of the Act of 1890, and to the following
regulations : —

(1.) Where the liquidator desires to make any call on the contributories, or any
of them for any purpose authorised by the Acts, if there is a committee <u
inspection he may summon a meeting of such committee for the purpose of
obtaining their sanction to the intended call.



Digitized by



Google



Companies Winding-up Rules, 1903. Bnles of 1903 1055

(2.) The notioe of the meeting ahall be sent to each member of the committee of
inspection in sufficient time to reach him not lees than seven days before
the day appointed for holding the meeting, and shall contain a statement
of the proposed amonnt of the call, and the purpose for which it lb intended.
Notice of the intended call and the intended meeting of the committee of
inspection shall also be adyertised once at least in a London newspaper,
and where the winding-up is not m the High Oourt, also in a newspaper
droulating in the district of the <3ourt in which the proceedings are
pending. The advertisement shall state the time and place of the in-
tended meeting of the committee of inspection, and that each contributory
may either attend the said meeting and be heard, or make any communica-
tion in writing to the liquidator or members of the committee of inspection
to be laid before the meeting, in reference to the said intended call.

(3.) At the meeting of the committee of inspection any statements or representa-
tions made either to the meeting personally or addressed in writing to the
liquidator or members of the committee by any contributory shall be con-
sidered before the intended call is sanctioned.

(4.) The sanction of the committee ahall be g^ven by resolution, which shall be
p assed by a majority of the members present.

(6.) Where there is no committee of inspection, the liquidator shall not make a
call without obtaining the leave of the Court.

87. In a windiug-up by the Court an application to the Court for leave to make Application to
any call on the contributories of a company, or any of them, for any purpose autho- f**® ^^^tonuA
rised by the Acts, shall be made by summons stating the proposed amount of such call, ^^ ^ ^
which aummons shall be served four clear days at the least before the day appointed Lot

for making the call on every contributory proposed to be included in such call ; or ^'
if the Court so directs, notice of such intended call may be given by advertisement,
without a separate notice to each contributory.

88. When the liquidator is authorised by resolution or order to make a call on Document

the contributories he shall file with the registrar a document in the Form 68 with making the oalL
such variations as circumstances may require making the call. p. 627

80. When a call has been made by the liquidator in a winding-up by the Court, Service of notioe
a copy of the resolution of the committee of inspection or order of the Court (if any, ©' * <*^*
as the case may be), shall forthwith after the call has been made be served upon p. 527
each of the contributories included in such call, together with a notice from the
liquidator specifying the amount or balance due from such contributory in respect
of such call, but such resolution or order need not be advertised unless for any
special reason the Court so directs.

00. The payment of the amount due from each contributory on a call may Enforcement
be ffliforced by order of the Court, to be made in Chiunbers on summons by the ^' *^'
liquidator. P« 527

Pboofs (p. 440).

91. In a winding-up by the Court every creditor shall prove his debt. ^***!mo' ^^^'

02. A debt may be proved in any win^g-up by delivering or sending through J^ ^^„.,^
the post an affidavit verifying the debt. In a winding-up hj the Court the Mode of proof,
affidavit shall be so sent to the official receiver or, if a liquidator has been P- ^40
appointed, to the liquidator ; and in any other winding-up the affidavit may be so

sent to the liquidator.

03. An affidavit proving a debt may be made by the creditor himself or by Yeriflcationof
some person authorised by or on behalf of the creditor. If made by a person so P'^''
authonsed, it shall state his authority and means of knowledge. p. 441

04. An affidavit proving a debt shall contain or refer to a statement of account CJontents of
showing the particulars of the debt, and shall specify the vouchers, if any, by proof,
which the same can be substantiated. The official receiver or liquidator to whom p. 441
the proof is sent may at any time call for the production of the vouchers.

05. An affidavit proving a debt shall state whether the creditor is or is not a Statement of
secured creditor. security.

06. An affidavit i>roving a debt may in a winding-up by the Court be sworn P* ^^
before an official receiver, or assistant official receiver, or any officer of the Board Proof before
of T^e or any derk of an official receiver duly authorised in wiitmg by the Court ^hom awom.
or the Board of Trade in that behalf. P- 441

07. A creditor shall bear the ooet of proving his debt unleas the Court otherwiae Costs of pcoof.
orders. p. 441

3y2



Digitized by



Google



1056



Appendix B.



Disoonnt. 08. A creditor proving his debt shall deduct therefrom all trade disoonnts, but

p. 441 ^0 sl^^l ^ot be compelled to deduct any discount, not exceeding five per centum on

the net amount of his claim, which he may have agreed to allow for payment

in cash.

Periodical pay- 99. When any rent or other payment falls due at stated periods, and the order
ments. or resolution to wind up is made at any time other than one of those periods, the

persons entitled to the rent or payment may prove for a proportionate part thereof
up to the date of the winding-up order or resolution as if the rent or payment grew
due from day to day. Provided that where the liquidator remains in occupation of
premises demised to a company which is being wound up, nothing herein contained
shall prejudice or affect the right of the landlord of such premises to claim payment



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 136 of 152)