Charles Mac Naughten Sir Francis Beaufort Palmer.

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

. (page 137 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 137 of 152)
Font size
QR-code for this ebook


by the company, or the liqui&tor, of rent during the period of the company's or
liquidator's occupation.

100. On any debt or sum certain, payable at a certain time or otherwise, whereon
interest is not reserved or agreed for, and which is overdue at the date of the
winding-up order or resolution, the creditor may prove for interest at a rate not
exceeding four per centum per annum to that date from the time when the debt
or sum was payable, if the debt or sum is payable by virtue of a written instrumeut
at a certain time, and if payable otherwise, then from the time when a demand in
writing has been made, grivinff notice that interest will be claimed from the date
of the demand until the time of i>ayment.

101. A creditor ma^ prove for a debt not payable at the date of the winding-up
order or resolution, as if it were payable presently, and may receive dividends equally
with the other creditors, deducting only tnereout a rebate of interest at the rate of five
per centum per annum computed from the declaration of a dividend to the time when
the debt would have become payable according to the terms on which it was contracted.

102. In any case in which it appears that there are numerous claims for wages by
workmen and others employed by the company, it shall be sufficient if one proof for
all such daims is made either by a foreman or by some other person on behalf of all
such creditors. Such proof shall have annexed thereto as forming part thereof, a
schedule setting forth tne names of the workmen and others, and the amounts severally
due to them. Any proof made in compliance with this rule shall have the same
effect as if separate proofs had been made by each of the said workmen and others.

108. Where a creditor seeks to prove in respect of a bill of exchange, promissory
note, or other negotiable instrument or security on which the company is Uable, such
bill of exchange, note, instrument, or security must, sub^'ect to any special order of
the Court made to the contrary, be produced to the official receive, chairman of a
meeting or liquidator, as the case may be, and be marked by him before the proof
can be admitted either for voting or for any purpose.

104. A proof intended to be used in a winding-up by the Court at the first
meeting of creditors or at an adjournment thereof shall be lodged with the official
receiver not later than the time mentioned for that purpose in the notice oonvening
the meeting or adjourned meetiDg.

105. Where a liquidator is appointed in a winding-up by the Court, all proofs
of debts that have been received by the official receiver shall be handed over to
the liquidator, but the official receiver shall first make a list of such prooib, and
take a receipt thereon from the liquidator for such proofs.

Adiossioh Aia> ftEjEcmoN of Pboofs, and Affbal to tkb Cottbt (p. 448).

Notice to 106. Subject to the provisions of the Acts, and unless otherwise ordered by the

creditors to Court, the liquidator in any winding-up may from time to time fix a oertain day,

prove. which shall be not less than fourteen days from the date of the notice, on or befors

p. 442 which the creditors of the company are to prove their debts or claims, or to be

excluded from the benefit of any distribution made before such debts are proved,

and the liquidator shall give notice in writing of the day so fixed by advertisement

in such newspaper as he shall consider convenient, and in a winding-up by the

Court to every person mentioned in the Statement of Affairs as a creditor, and who

has not proved nis debt, and in any other winding-up to the last known address or

place of abode of each person who, to the knowledge of the liquidator, claims to be

a creditor of the company and whose claim has not been admitted.

Examination of 107. The liquidator shall examine every proof of debt lodgfed with him, and Uie
pToot. grounds of the debt, and in writing admit or reject it, in whole or in part, or

p. 442 require further evidence in support of it. If he rejects a proof he shall state

in writing to the creditor the grounds of the rejection.



p. 441
p. 420



IhtereBt.
p. 441



Proof for debt
payable at a
future tin^e.
p. 441



"Workmen's
wages.

p. 441



Production of
bills of exchange
and promissory
notes.

p. 441



Time for lodging
proofs.

p. 442



Tmnsmission of
rbofa
ator.

p. 442



proofs to liqui-
dator



Digitized by



Google



Companies Winding-up Rules, 1903. Bnles of 1903 1067

108. If a creditor or oontributorj is dissatisfied with the decision of the liquidator -^PPf'^ ^
in respect of a proof, the Court may, on the application of the creditor or oontribu- <a*ditor.
tory, reverse or vary the decision ; but, subject to the power of the Court to extend P* 442
the time, no application to reverse or vary the decision of the liquidator in a
winding-up by the Court rejecting a proof sent to him by a creditor, or person
claiming to be a creditor, shall be entertained, unless notice of the application is
given before the expiration of 21 days from the date of the service of the notice of
rejection.

100. If the liquidator thinks that a proof has been improperly admitted, the S^^*'^*^**
Court may, on the application of the liquidator, after notice to the creditor who u^d^rf
made the proof expunge the proof or reduce its amount. ^^

110. The Court may also expunge or reduce a proof upon the application of a Expunging at
creditor or contributory if the liqui&tor declines to interfere in the matter. instance of

111. For the purpose of any of his duties in relation to proofs, the liquidator, _ 4^'
in a winding-up by the Court, may administer oaths and take affidavits. ^'

112. In a winding-up by the Court the official receiver, before the appointment p. 442

of a liquidator, shall have all the powers of a liquidator with respect to the official receiver's
examination, admission, and rejection of proofs, and any act or decision of his in powers,
relation thereto shall be subject to the like appeal. p 443

^ 118. In a winding-up by the Court the official receiver, where no other Filing proof s of

liquidator is appointed, shall, before payment of a dividend, file all piroof s tendered official receiver,

in the winding-up, with a list thereof, distinguishing in such list the proofs which p. 448
were wholly or partly admitted, and the proofs which were wholly or partly
rejected.

114. Every liquidator in a winding-up by the Court other than the official Proofs to be
receiver shall on the first day of every month, file with the registrar a certified fi^^*

list of all proofs, if any, received by him during the month next preceding, p. 448
distinguishing in such lists the proofs admitted, those rejected, and such as stand
over for further consideration ; and, in the case of proofs admitted or rejected,
he shall cause the proofs to be filed with the registrar.

115. The liquidator in a winding-up by the Court, including the official receiver ^^^"^ ^^™
when he is liquidator, shall, within three days after receiving notice from a creditor *^^!JJ5 appeals,
of his intention to appeal against a decision rejecting a proof, file such proof P- 443

with the registrar, with a memorandum thereon of his disallowance thereof.

116. Subject to the power of the Court to extend the time in a winding-up by Time for dealing
the Court, the official receiver as liquidator, not later than fourteen days from the "^*» proofs by
latest date specified in the notice of his intention to declare a dividend as the time offiaai receiver,
within which such proofs must be lodged, Bh&U in writing either admit or reject P» 443
wholly, or in part, every proof lodged with him, or require further evidence in

support of it.

117* Subject to the power of the Court to extend the time, the liquidator in a Time for dealing
winding-up by the Court, other than the official receiver, within twenty-eight days jyith proofs by
after receiving a proof, which has not previously been dealt with, shall in writing **^^^q ^'
either admit or reject it wholly or in part, or require further evidence in support of P' 448
it. Provided that where the liquidator has given notice of his intention to
declare a dividend, he shall within fourteen days after the date mentioned in the
notice as the latest date up to which proofs must be lodged, examine, and in writing
admit or reject, or require further evidence in support of, every proof which has
not been already dealt with, and shall give notice of his decision, rejecting a

C>f wholly or in part, to the creditors affected thereby. Where a creditor's proof
been admitted the notice of dividend shall be a sufficient notification ol the
admission.

118. The official receiver shall in no case be personally L'able for costs in relation Costa of ai^peals
to an appeal from his decision rejecting any proof wholly or in part. '"^ dedmona

p. 448

DlYIDENDe m A WlWDINO-TJP BY THB COUBT (pp. 448, 488).

110. — (I.) Not more than two months before declaring a dividend the liquidator Dividends to
in a winding-up by the Court, shall gfive notice of his intention to do so to the creditors.
Board of Trade in order that the same may be gazetted, and at the same time to
such of the creditors mentioned in the statement of affairs as have not proved
their debts. Such notice shall specify the latest date up to which proofs must
be lodged, which shall not be less than fourteen days from the date of such notice.



Digitized by



Google



1058



Appendix B.



p. 484



.488



Return of
capital to
oonttibutorieB.
pp. 652, 662



Mcetin^irs for
aacertaming
-wishes of cre-
ditors And con-
tributories.

p. 428

Meetings sub-
Boqiient to the
lirst meeting.

p. 428



Notioes of
general meet-
ings.

p. 428



(2.) Where any creditor, after the date mentioned in the notice of intention to
declare a dividend as the latest date up to which proofs ma^ be lodged, appeals
against the decision of the liquidator rejecting a proof, notice of appeal shall,
subject to the power of the Court to extend the time in special cases, be given
within seven days from the date of the notice of the decision against which the
appeal is made, and the liquidator may in such case make provision for the dividend
upon such proof, and the probable costs of such appeal in the event of the proof
being admitted. Where no notice of appeal has been ffiven within the time ^ecified
in this rule, the liquidator shall ezdude all proofs which have been rejected from
participation in the dividend.

(3.) Immediately after the crxpiration of the time fixed by this rule for appealing
against the decision of the liquidator he shall proceed to declare a dividend, and
shall give notice to the Board of Trade (in order that the same may be gazetted), and
shall also send a notice of dividend to each creditor whose proof has been admitted.

^4.) If it becomes necessary, in the opinion of the liquidator and the committee
of inspection, to postpone the declaration of the dividend beyond the limit of two
months, the liquidate shall give a fresh notice of his intention to declare a dividend
to the Board of Trade in order that the same may be (gazetted ; but it shall not be
necessary for the Liquidator to give a fresh notice to such of the creditors mentioned
in the statement of affairs as have not proved their debts. In all other respects
the same procedure shall follow the fresh notice as would have followed the original
notice.

{5^ Upon the declaration of a dividend the liquidator shall forthwith transmit to
the Boara of Trade a list of the proofs filed with the registrar under R. 1 14, which
list shall be in the Form 68 or 69 in the Appendix as the case may be. If the
winding-up is in a Court other than the High Court the list shall, on pavment of
the prescribed fee, be examined by the registrar, with the proofs tendered for filing
and if found correct shall be certified by the registrar. If the winding-up is in the
High Court the liquidator shall, if so required by the Board of Trade, transmit to
the Board of Trade, ofiice copies of all lists of proofs filed by him up to the date of
the declaration of the dividend.

(6.) Dividends may at the request and risk of the person to whom they are
payable be transmitted to him by post.

(7.) If a person to whom dividends are payable desires that they shall bepaid to
some other person he may lodge with the uquidator a document in the form 72
which shall be a sufficient authority for payment of the dividend to the person
therein named.

120. Every order by which the liquidator in a winding-up by the €k>urt is
authorised to make a return to contributories of the company, shall, unless the
Court shall otherwise direct, contain or have appended thereto a schedule or list
(which the liquidator shall prepare) setting out m a tabular form the full names
and addresses of the persons to whom the return is to be paid, and the amount ol
money payable to each person, and particulars of the transfers of shares (if any)
which have been made by, or the variations in the list of contributories which
have arisen since the date of the settlement of tiie list of contributories. The
schedule or list shall be in the Form 74 with such variations as cireomstanoes
shall require.

GsNXBAL Meetings of Cbeditobs and Contbibxttobibs in a WiNi>i5a-up

BT THE COXTBT (p. 428).

121. Subject to the provisions of the Acts and to the control of the Cofirt, the
liquidator may from tmie to time, when he thinks expedient, summon, bold and
conduct meetings of the creditors or contributories for the purpose of ascertaining
their wishes in all matters relating to the winding-up.

122. Meetings subsequent to the first meetings of creditors and contributories
shall be summoned by sending notices to them. The notice to each creditor shall
be sent to the address given in his proof, or if he has not proved to the address
given in the statement of affairs of tne company, or to such other address as may be
known to the person summcming the meeting. The notice to each contributory
shall be sent to the address mentioned in the company's books as the address ol
such contributory, or to such other address as may be Imown to the person snmmon-
ing the meeting.

123. The notices of general meetinffs to be issued to creditors and contributories
by the official receiver or liquidator shall, where no special time is prescribed, be
sent off not less than seven q&jb before the day appointed for the meeting.



Digitized by



Google



Companies Winding-up Rui.es, 1903. Bnles of 1903 1059

124. A certificate by the official reefer or other offioer of the Oourt, or by the Proof of notice,
clerk of any such person, or an affidavit by the liquidator, or his solicitor, or the pp. 284, 4S8
clerk of either of such persons, that the notice of any meeting has been duly posted,

shall be sufficient evidence of such notice having* been duly sent to the person to
whom the same was addressed.

125. The costs of summoning a meeting of creditors at the instance of any person Co^ of calling
other than the official receiver or liquidator, shall be paid by the persan at whose "aeeting.
instance it is summoned, who shall before the meeting is summoned deposit with P* 428

the official receiver or liquidator (as the case may be) such sum as may be required
by the official receiver or liquidator as security for the payment of such costs. The
costs of summoning such meeting of creditors including all disbursements for
printing, stationery, postage, and the hire of room, shul be calculated at the
following rates for each creditor to whom notice is required to be sent: — two
shillinga -per creditor for the first twenty creditors, one shilling per creditor for the
next thirty creditors, sixpence per creditor for any number of creditors after the
first fifty. The said costs shall be repaid out of the assets of the company if the
Court shall by order, or if the creditors or contributories (as the case may be) shall
by resolution so direct.

126. Where a meeting is summoned by the official receiver, he, or someone Chainnanof
nominated by him, shall be chairman of the meeting. At every other meeting of meeting,
creditors and contributories (other than meetings to which the schedule of the Act p. 429

of 1890 applies) the chairman shall be such person as the meeting by resolution
shall appoint.

127. At a meeting of creditors a resolution shall be deemed to be passed when Ordinaij reso-
a majority in number and value of the creditors present, personally or by proxy, ^^^°' ^
and voting on the resolution, have voted in favour of the resolution, and at a SJSibutori^.
meeting of the contributories a resolution shall be deemed to be passed when a 234 429
majority in number and value of the contributories present, personally or by proxy, ^^' *
and voting on the resolution, have voted in favour of the resolution, the value of

the contributories being determined according to the number of votes conferred on
each contributory by the regulations of the company.

128. The official receiver, or, as the case may be, the liquidator, shall file with S^'P^x^'^^^JS"
the registrar, a copy, certified by him, of every resolution of a meeting of creditors ^^ ^^ t^t*
or contributories. PP- ^34, 429

129. Where a meeting of creditors or contributories is summoned by notice, the Non-reception
proceedings and resolutions at the meeting shall, unless the Court otherwise orders, ^redito? ^^ *
be valid, notwithstanding that some croditors or contributories may not have ooi. aaq
received the notice sent to them. PP* '***' ***

130. Where a meeting of creditors is adjourned, the adjourned meeting shall be Adjoamment.
held at the same place as the original place of meeting, unless in the resolution for pp. 234, 429
adjournment another place is specified, or unless the Gourt otherwise orders.

131. In calculating a quorum at a creditors' meeting, those persons only who are Qaonun.
entitled to vote shall be reckoned. pp. 286, 429

Pboxibs in a Wiwdinq-up by thb Ooubt (pp. 285, 240).

132. — (1.) A proxy intended to be used at the first meeting of creditors or con- Froxief.
tributories, or an adjournment thereof, shall be lodged with the official receiver not pp. 236, 429
later than the time mentioned for that purpose in tho notice convening the meeticg
or the adjourned meeting, which time shall be not earlier than twelve o'clock at
noon of the day but one before, nor later than twelve o'clock at noon of the day
before the day appointed for such meeting, unless the Court otherwise directs.

(2.) In evenr other case a proxv shaU be lodged with the official receiver or
liquidator not later than four o^dock in the afternoon of the day before the meeting
or adjourned meeting at which it is to be used.

(3.) No person sh^ be appointed a general or special proxy who is a minor.

(4.) Where a lindted company is a creditor, any person who is duly authorised
imder the seal of the company to act generally on behalf of the company at
meetings of creditors and contributories and to appoint himself or any other person
to be the company's proxy, may fill in and sign the form of proxy on the company's
behalf and appoint himself to be the company's proxy, and a proxy so filled in and
sigrned by suon a person shall be received and dealt with as tho proxy of the company.

188. Where an official receiver who holds any proxies cannot attend the meeting Use of proxies
for which they are given, he may, in writing, depute some person under his official by deputy.
Qontrol to use the, proxies on his behalf, and in such manner as he may direct. pp. 286, 429



Digitized by



Google



1060



Appendix B.



Fillingr in irhere 184. The proxy of a creditor Uind or inoapaUe of writing maj be aooepied, if

cpeditOT blind or such creditor has attached his signatiire or mark thereto in the presence of a witness,

"*°* MK AM% ^^^ ^*^ *^^ *^ ^ signature his description and residence ; provided that all

pp. 2So, 480 insertions in the proxy are in the handwriting of the witness, and such witness

shall have certified at the foot of the proxy that all such insertions have been made

bj him at the request of the creditor and in lus presence before he attached hii

signature or mark.

AXTENBANOB AKD ApPEABANOB OF TAXrOB.

'Ajt'^^oeat 185. — (1.) Every person for the time being on the list of oontributoriee of the

prooTOdings. ccmpany, and every person whose proof has been admitted shall be at liberty, at
P* 1^^ his own expense, to attend proceedings, and shall be entitied, upon payment of

the costs occasioned thereby, to have notice of all such proceedings as he shall by
written request desire to have notice of ; but if the Court shall be of oi>inion that
the attendance of any such person upon any proceedings has occasioned any
additional costs which ought not to be borne by tne funds of the company, it may
direct such costs, or a gross sum in lieu thereof, to be paid by such person ; and
such person shall not be entitied to attend any further proceedings until he has paid
the same.

(2.) The Court may from time to time appoint any one or more of the creditors
or contributories to represent before the Court, at the expense of the company, all
or any class of the creditors or contributories, upon any question or in relation to
any proceeding's before the Court, and may remove the person so appointed. If
more than one person is appointed under this rule to represent one class, the persons
appointed shall employ the same solicitor to represent tnem.

(3.) No creditor or contributory shall be entitled to attend any proceedings in
Chambers unless and until he has entered in a book, to be kept by the registrar for
that purpose, his name and address, and the name and address of his solicitor (if
any) and upon any change of his address or of his solicitor, his new address, and
the name and address of his new solicitor.

Attendance of 136. Where the attendance of the liquidator's solicitor is required on any pro*

^IT^'to'*^''' oeeding in Court or Chambers, the liqmdator need not attend in person, except in

"^ ^,^' cases where his presence is necessary in addition to that of his solicitor, or the

P- ^^ Court directs him to attend.



Bemuneration
of liquidator.



limit of
remaneration.



Dealings with
assets.

pp. 288, 861



LlQUIDATOB IND CoiOCIITSB OF iNSFBOnOK IN A WlKDIirO-TTP BT THB COUST

(p. 882).

137. — (1.) The remuneration of a li(^uidator, unless the Court shall otherwise order,
shall be fixed by the committee of mspection, and shall be in the nature of a
oommission or percentage of which one part shall be payable on the amount realized,
after deducting the sums (if any) paid to secured creditors (other than debenture
holders) out of the proceeds of their securities, and the other part on the amount
distributed in dividend.

(2.) If the Board of Trade is of opinion that the remuneration of a liquidator as
fixed by the committee of inspection is unnecessarily large, the Board of Trade may
apply to the Court, and thereupon the Court shall fix the amount of the remunera-
tion of the liquidator.

(3.) If there is no committee of inspection the remuneration of the liquidator
shall, unless the Court shall otherwise order, be fixed by the scale of fees and
percentages for the time being payable on realizations luid distributioDB by the
official receiyer as liquidator.

^ 138. Except as provided by the Acts or Bules, a liquidator shall not under any
circumstances whatever, make any arrangement for, or accept from any solicitor,
auctioneer, or any other person connected with the company of which he is liqui*
dator, or who is employed in or in connection with the winding-up of the company,
any gift, remuneration, or pecuniary or other consideration or benefit whatever
beyond the remimeration to which under the Acts and Bules he is entitled as
liquidator, nor shall he make any arrangement for giving up, or give up any part
of such remuneration to any such solicited, auctioneer, or other person.

130. Neither the liquidator nor any member of the committee of inspection of a
company shall, while acting as liquidator or member of such committee, except by
leave of the Court, either directiy or indirecUy, by himself or any partner, cleric,
agent, or servant, become purchaser of anj* part of the company's assets. Ai^
such purchase made contrary to the provisions of this Bute may be set aside by



Digitized by



Google



Companies Winding-up Rules, 1903. Bules of 1903 * 1061

the Court on the application of the Board of Trade or any creditor or contribatorj,



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 137 of 152)