Charles Mac Naughten Sir Francis Beaufort Palmer.

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

. (page 138 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 138 of 152)
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and the Court may mf^e such order as to costs as the Court shall think fit.

140. Where the liquidator carries on the husiness of the company, he shall not, Eeitriotion of
without the express sanction of the Court, purchase goods for the carrying on of E^Jdeby
such business f^m any person whose connection with the liquidator is of such a Uqvddator.
nature as would result in the liquidator obtaining any portion of the profit (if any) p^ 943
arising out of the transaction.

141. No member of a committee of inspection shall, except under and with Committee of
the sanction of the Court, directly or indirectly, by himself or any employer, inspection not to
partner, derk, agent, or servant, be entitled to derive any profit from any n^*«eproflt.
transaction arising out of the winding-up, or to receive out of the assets any P* ^^
payment for services rendered by him in connection with the administration A

the assets, or for any goods supplied ^ him to the liquidator for or on account
of the company. If it appears to the Board of Trade that any profit or payment
has been made contrary to the provisions of this rule, they may disallow such
payment or recover such profit, as the case may be, on the audit of the liquidator's
accounts.

142* In any case in which the sanction of the Court is obtained under the two Costs of obtain-
last preceding rules, the cost of obtaining such sanction shall be borne by the ^f(^^^^
person in whose interest such sanction is obtained, and shall not be payable out of _ '
the company's assets. P* •"*

143. Where the sanction of the Court to a payment to a member of a committee Sanction of
of inspection for services rendered by him in connection with the administration of ^^^^L***
the company's assets is obtained, the order of the Court shall specify the nature of ®°'™***®'
the services, and such sanction shall only be gfiven where the service performed P* ***
is of a special nature. Except by the express sanction of the Court no remunera-
tion shall, under any circumstances, be paid to a member of a committee for
services rendered by him in the discharge of the duties attaching to his office as a
member of such committee.

144. — (1.) Where a liquidator is appointed by the Court, and has notified his Discharge of
appointment to the registear of joint stock companies, and given security to the <»«t8 b««>w>
Board of Trade, the official receiver shall forthwith put the liquidator into JJul^uid^tor
possession of all property of the company of which the official receiver may have ^^ 040
custody; provided tnat such liquidator shall have, before the assets are handed PP* * •
over to him by the official receiver, discharged any balance due to the official
receiver on account of fees, costs, and charges properly incurred by him, and on
account of any advances properly made by mm in respect of the company, tog^ether
with interest on such advances at the rate of four pounds per centum per annum ;
and the liquidator shall pay all fees, costs, and charges of the official receiver
which may not have been discharged by the liquidator before being put into
possession of the property of the company, and whether incurred before or after he
has been put into sucn possession.

(2.) The official receiver shall be deemed to have a lien upon the company's assets
until such balance shall have been paid and the other liabilities shall have been dis-
charged.

(3.) It shall be the duty of the official receiver, if so requested by the liquidator,
to communicate to the liquidator all such information respectiDg the estate and
affairs of the company as may be necessary or conducive to the due discharge of the
duties of the liquidator.

145* A liquidator who desires to resign his office shall summon separate meetings Besignation of
of the creditors and contributories of the company to decide wheuier or not the liqaidaton.
resignation shall be accepted. If the creditors and contributories by ordinary p. 071
resolutions both agree to accept the resignation of the liquidator, he tthall file with
the registrar a memorandum of his resignation, and shall send notice thereof to the
official receiver, and the resignation shall thereunon take effect. In any other case
the liquidator shall report to the Court the result of the meetings and shall send a
report to the official receiver and thereupon the Court may, ui)on the application of
the liquidator or the official receiver, determine whether or not the resignation
of the liquidator shall be accepted, and may give such directions and maike such
orders as in the opinion of the Court shall be necessary.

146. If a receiving order in bankruptcy is made against the liquidator, he shall Office of
thereby vacate his office, and for the purposes of the application of the acts and ^''^^^f^^'^ »^
rules sball be deemed to have been removed. SI^YencJ.

p. 371



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1062



Appendix B.



Fftymente out of
Bankof Engw
]and.

p. 838

Special bank
ooooant.

p. 888



EecorJ book,
pp. 200, 271,
297,430



Patichntb Into and Out of a Banx (p. 883).

147. Ail payments out of the companies liquidation account shall be made in
such manner as the Board of Trade may from time to time direct.

148. — (1.) Where the liquidator in a winding-up by the Court is authoiixedto
have a special bank account, he shall forthwith pay all moneys reoeired by him
into that account to the credit of the liquidator of the company. All paymentB
out shall be made by cheque payable to order, and every cheque shall hare marked
or written on the face of it the name of the company, and ^all be signed by the
liquidator, and shall be countersigned by at least one member of the committee ol
inspection, and by such other person, if any, as the committee of inspection may
appoint.

(2.) Where application is made to the Board of Trade to authorize the liquidator
in a winding-up by the Ck>urt to make his payments into and out of a speciiJ
bank account, the Board of Trade may grant such authorization for such time and
on such terms as they ma^ think fit, and may at any time order the account to be
closed if they are of opinion that the account is no longer required for the purposes
mentioned in the application.

Books (p. 200).

149. The official receiyer, until a liquidator is appointed by the Court, and there-
after the liquidator, shall keep a book to be called the *' Record Book ** in which he
shall record all minutes, all proceedings had and resolutions passed at any meeting
of creditors or contributories, or of the committee of inspection, and all su^ mattera
as may be necessary to g^ve a correct view of his admmistration of the company'd
affairs, but he shall not be bound to insert in the " Record Book " any document of
a confidential nature (such as the opinion of counsel on any matter affecting the
interest of the creditors or contributories), nor need he exhibit such docimxcnt to
any person other than a member of the conmiittee of inspection, or the official
receiver, or the Board of Trade.

150. — (1.) The official receiver, until a liquidator is appointed by the Court, and
thereafter the liquidator, shall keep a book to be called the " Cash Book '* (whidi
shall be in such form as the Board of Trade may from time to time direct), in which
he shall (subject to the provisions of the rules as to trading aooounta) enter from
day to day the receipts and payments made by him.

(2.) The liquidator shall submit the record book and cash book, together with
any other requisite books and vouchers, to the oonomittee of inspccUun (if any)
when required, and not less than once every three months.

Investment of Funds (p. 839).

151. — (I.) Where the conmiittee of inspection are of opinion that any part of the
cash balance standing to the credit of the account of a company which is being
wound-up b^ the Court should be invested, they shall sign a o^iificate and request,
and the hquidator shall transmit such certificate and request to the Board of Trade.

(2.) Where the committee of inspection are of opinion that it is advisabfe to sdl
any of the securities in which the moneys of the company's assets are invested, they
shall sign a certificate and request to that effect, and the liquidaUw' shall truismk
such certificate and request to the Board of Trade.

(3.) Where in a winding-up by the Court there is no committee of in^)eotion, or
in a voluntary winding-up, or winding-up under the supervision of the Cooit, if
in the opinion of the liquidator a case has arisen under se<rt. 17 of the Act df 1890
for an investment of funds of the company or a sale of securities in which the
company^s funds have been invested, the liquidator shall sign and transmit to the
Board of Trade a certificate of the facts on which his opinion is founded, and a
request to the Board of Trade to make the investment mentioned in the certificate,
and the Board of Trade may thereupon, if it thinks fit, invest or sell the whole or
any part of the said funds or securities, as provided in the said section, and the said
certificate and request shall be a sufficient authority to the Board of Trade for ^
said investment or sale.

ACCOTJNTS AND AXTDIT Df A WiNDINO-TJP BY THE COUBT (p. 897).

152. The committee of inspection shall not less than once every three months

audit the liquidator's cash book and certify therein under their hands ths day on

which the said book was audited.

158.— (1.) Every liquidator in a winding-up by the Court shall, at the

audit of liquida- expiration of six months from the date of the winding-up order, and at the

tor's accounts, expiration of every succeeding six months thereafter unfil his rdeose, transmit



Cash book.
pp. 200, 297



p. 271



Investment of
asnets in seca-
rities, and reali-
sation of
securities.



Audit of cash
book.

p. 297

Board of Trade



tor's accounts.
p. 297



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Companies Winding-up Rules, 1903. Rules of 1903 1063

to the Board of Trade a copy of the cash book for such period in daplicate, together
with the necessaiT Yoaohers and copies of the certificates of audit by the committee
of inspection. He shall also forward with the first accounts a summary of the
company's statement of affairs, showio^ thereon in red ink the amounts realized,
and explaining the cause of the non-realization of such assets as may be unrealized.
The liquidator shall also at the end of every six months forward to the Board of
Trade, with his accounts, a report upon the position of the liquidation of the
oompanyin such form as the Board of Trade may direct.

(2.) when the assets of the company have been fully realized and distributed, the
liquidator shidl forthwith send in his accounts to the Board of Trade, although the
six months may not have expired.

(3.) The aocounts sent in by the liquidator shall be verified by him by aflBdavit.

154. — (1 .) Where the liquidator carries on the business of the company, he shall liquidator
keep a distinct account of the trading, and shall incorporate in the cash book the ^J^J^^'^
total weekly amount of the receipts and payments on such trading account. oQg

(2.) The trading account shall from tmie to time, and not less than once in every ^'
month, be verifi^ by affidavit, and the liquidator shall thereupon submit such
acootmt to the comnuttee of in^)ection (if any), or such member thereof as may be
appointed by the committee for that purpose, who Hhall examine and certify the
same.

155. When the liquidator's account has been audited, the Board of Trade shall Copf of accounts
certify the fact upon the account, and thereupon the duplicate copy, bearing a like *® "® *^^"*'
certificate, shall be filed with the reg^trar. P- 298

156. — (1.) The liquidator shall transmit to the Board of Trade with his accounts Summaiy of
a summary of such accounts in such form as the Board of Trade may from time to aocounta.
time direct, and, on the approval of such summary by the Board of Trade, shall p. 298
forthwith obtaio, prepare, and transmit to the Board of Trade so many printed
copies thereof, duly stamped for transmission by post, and addressed to the creditors
and contributories, as may be required for transmitting such summary to each
creditor and contributory.

(2.) The cost of printing and posting such copies shall be a charge upon the assets
of the company.

157. Wnere a liquidator has not since the date of his appointment or sinoe the Affidavit of no
last audit of his accounts, as the case may be, received or paid any sum of money on receipts,
account of the assets of the company, he shaU, at the time when he is required to p. 298
transmit his accounts to the Board of Trade, forward to the Board of Trade an
affidavit of no receipts or payments.

158. — (1.) Upon a liquidator resigning, or being released or removed from hi9 Proceedings on
office, he shall deliver over to the official receiver, or, as the case may be, to the new wognatioo, &c
liquidator, all books kept by him, and all other books, documents, papers, and ° 'Saa^^dJi
accounts in his possession relating to the office of liquidator. The release of a PP* 298, 348
liquidator shall not take effect unless and until he has delivered over to the official
receiver, or as the case may be to the new liquidator, all the books, papers, docu-
ments, and accounts which he is by this rule required to deliver on hia release.

(2.) The Board of Trade may, at any time during the progress of the liquidation, Disposal of
on the application of the liquidator or the official receiver, direct that such of the books, ^>ooka,
papers, and documents of the company or of the liquidator as are no longer required
for the purpose of the liquidation, may be sold, destroyed, or otherwise disposed of.

159. Where property forming part of a company's assets is sold by the hquidator Expenses of
through an auctioneer or other agent, the gross proceeds of the safe shall be paid ^
over by such auctioneer or agent, and the charge and expenses connected with P* 298
the sale shall afterwards be paid to such auctioneer or a^ent, on the production of

the necessary certificate <^ the taxing officer. Every liquidator, by whom such
auctioneer or agent is employed, shall, unless the Court otherwise orders, be
accountable for Uie proceeds of every such sale.

Taxation of CJosts (Ch. 47, p. 650).

160. Every solicitor, manager, aooonntant, auctioneer, broker or other person Taxation of ooste
employed by an official receiver or liquidator in a winding-up bjr the Court snail on PffiJa* ^P* ***
request by the official receiver or liquidator (to be made a sufficient time before the ^^ Suidatoror
declaration of a dividend) deliver his bill of costs or charges to the official receiver byoompanj.

or liquidator for the purpose of taxation ; and if he fails to do so within the time
stat^ in tiie request, or such extended time as the Court may allow, the liquidator
shall declare and distribute the dividend without regard to such person's chum, and
subject to any order of the Court the claim shall be forfeited. The request by the
official receiver or liquidator shall be in the Form No. 89.



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1064



Appendix B.



Notice of ap-
pointment.



T/odgmentof
bUl.



Ck>py of the bill
to be forniahed.



Applications
for coats.



Certificate of
taxation.



Certificate of
employment.

p. 880



Bcale of costs in
Conntf Court,
and taxation.

Beviewof
taxation at
instance of
Board of Trade.



161. Where a bill of oosts or charges in any winding-ap is to be taxed, th«
taxing officer shall give notice of an appointment to tax the same, in a winding-np
hj the Court to the official receiver, and in eveiT winding-up to the liquidlator,
and to the person to or by whom the bill or charges is to be paid (as the oaae
maybe).

162. The bill or charges, if incurred in a winding-up by the Court prior to the
appointment of a liquidator, shall be lodged with the official receiver, and if incurred
after the appointment of a liquidator, shall be lodged with the liquidator. Hie
official receiver or the liquidator, as the case may be, shall lodge the bill or charges
with the proper taxing officer.

168. Every person whose bill or charg^es in a winding-up by the Court is or are
to be taxed shall, on application either of the official receiver or the liquidator,
furnish a copy of his bill of charges so to be taxed, on payment at the rate of id,
per folio, which payment shall be charged on the assets of the company, llie
official receiver shall call the attention of the liquidator to any items wnich, in his
opinion, ought to be disallowed or reduced, and may attend or be represented on the
taxation.

164. Where any party to, or person affected by, any proceeding desires to make
an application for an order that he be allowed his costs, or any part of them,
incident to such proceeding, and such application is not made at the time of the
proceeding : —

(1.) Such party or person shall serve notice of his intended application on the

official receiver in a winding-up by the Court and in every winding-up on

the liquidator.
(2.) The official receiyer (if any) and liquidator may appear on such application

and object thereto.
(3.) No costs of or incident to such application shall be allowed to the applicant,

unless the Court is satisfied that the application could not have been made

at the time of the proceeding.

165. Upon the taxation of any bill of costs, charge, or expenses being oom-

Eleted, the taxing officer shall issue to the person presenting suon bill for taxation
is allowance or certificate of taxation. The bill of costs, charges, and expenses,
together with the allowance or certificate, shall be filed with the registrar.

166. Where the bill or charges of any solicitor, manager, accountant, auctioneer,
broker, or other person employed by an official receiver or liquidator, is or are
payable out of the assets of tne company, a certificate in writing, signed by the
official receiver or liquidator, as the case may be, shall on the taxation be produced
to the taxing officer setting forth whether any, and if so what, special terms <^
remuneration have been ag^roed to, and in the case of the bill of costs of a solicitor,
a copy of the resolution or other authority sanctioning the employment.

167. In a County Court all costs properly incurred in a winding-up by the Court
fhall be allowed on the lower scale in Appendix N. to the Rules of the Supreme
Court, and costs shall be taxed by the registrar in person.

168.— (1.) Where any bill of costs, charge, fees or disbursemeots whioih axe
payable out of the assets of the company to any solicitor, manager, accountant,
auctioneer, broker or other person has been taxed by a registrar of a Court oQner
than the High Court, the Board of Trade may require the taxation to be r eviewed
by the taxing officer of the High Court.

(2.) In any case in which the Board of Trade require such a review of tiiTation
as is above mentioned they shall gfive notice to the person whose bill has been taxed,
and shall apply to the taxing officer of the Hi^h Court to appoint a time for the
review of such taxation and thereupon such taxmg officer shall appoint a time for
the review of, and shall review, such taxation and certify the reeuit thereof. Hie
Board of Trade shall give to the person whose bill of oosts is to be reviewed notioo
of the time appointed for the review.

(8.) Where any such review of taxation as is above mentioned is required to be
made by the taxmg officer of the High Court, the registrar whose taxation is to
be reviewed shall forward to the said taxing officer the bill which is required to be
reviewed.

(4.) The Board of Trade may appear upon the review of the taxation ; and if,
upon the review of the taxation, the bill is allowed at a lower sum than the tarn
allowed on the original taxation, the amount disallowed shall (if the bill htm beai



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Companies Windikg-up Rules, 1903- Rules of 1903 1065

paid) be ^^aid to the official receiyer or the liquidator, or other person entitled
thereto. Tlie oertifioate of the taxing' officer shall in every oase of a review by
him nnder this mle be a sufficient authority to entitle the person to whom the
amount disallowed ought to be repaid to demand such amount from the person
liable to repay the same.

(6.) The oosts of and incidental to the review shall be paid out of the assets of the
company or otherwise as the taxing officer or the Court may direct ; provided that
the oosts of the attendance of a principal shall not be allowed if in the opinion of the
taxing officer he oould have been sufficiently represented by his London agent.

CJOSTS Aim EZFEMSBS PaTABLB 0T7T OF TEB ABBETS OF THB Ck>xPAirr (Ch. 47).

169,— (1.) Where a liquidator or special manager in a winding-up by the Court IiqTiidator»s
receives remuneration for his services as such, no payment shall be allowed on his «^*'*««'
accounts in respect of the performance by any otner person of the ordinary duties
which are required by statute or rules to be performed by himself.

(2.) Where a liquidator is a solicitor he may contract that the remuneration for
his services as liquidator shall include all professional services.

170. — (1 .) The assets of a company in a winding-up by the Court, remaining after Costs payable
payment of the fees and actual expenses incuired in realizing or getting in the o«tof theaaseto.
assets, shall, subject to any order of the Court, and, as regards a winding-up to
which the provisions of the Stannaries Act, 1887, apply, subject to that Act, be
liable to the following payments, which shall be made in the following order of
priority, namely : —

First, The taxed costs of the petition, including the taxed oosts of any person

appearing on the petition whose costs are allowed by the Court.
Next, The remuneration of the special manager (if any).
„ The oosts and expenses of any person who makes, or oonours in making,

the company's statement of affairs.
„ The taxed charges of any shorthand writer appointed to take an examina-
tion. Provided that where the shorthand writer is appointed at the
instance of the official receiver the cost of the shorthand notes shall be
deemed to be an expense incurred by the official receiver in g^etting in
and realising the assets of the company.
„ The liquidator's necessary disbursements, other than actual expenses of

realisation heretofore provided for.
„ The costs of any person properly employed by the liquidator with the

sanction of the committee of inspection.
„ The remuneration of the liquidator.

,, The actual out-of-pocket expenses necessarily incurred by the committee
of inspection, subject to the approval of the Board of Trade.
(2.) No payments in respect of bills or charges of solicitors, managers, accountants, Costs,
auctioneers, brokers, or other persons, other than payments for oosts and expenses
incurred and sanctioned under Rule 57, and payments of bills which have been
taxed and allowed under orders made for the taxation thereof, shall be allowed out
of the assets of Uie company without proof that the same have been oonsidered and
allowed by the registrar. The taxing officer shall satisfy himself before passing
sudi bills or charges that the employment of the solicitor or other person in respect
of the matters mentioned in the bills or charges has been duly sanctioned.

(3.) Nothing contained in this rule shall apply to or affect oosts which, in the
course of legal proceedings by or against a company which is being wound up by
the Court, are ordered by the Court in which such proceedings are pending or a
judge thereof to be paid by the company or the liquidator, or the rights of the
person to whom such costs are payable.

Statements bt LiatriDATOE to the Reoisteab of Joint Stooe Companies (p. 808).

171. The winding-up of a company shall, for the purposes of sect. 15 of the Condtwloii of
Act of 1890, be deemed to be concluded :— winding-up.

(rt.) In the case of a company wound up by order of the Court, at the date on PP* *"*» ^^
which the order dissolving the company has been reported by the liquidator
to the Registrar of Joint Stock Companies, or at the date of the order of
the Board of Trade releasing the liquidator pursuant to section 22 of the
Act of 1890.



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1066



Appendix B.



Times for send-
ing liquidator's
statements, and
regulations

thereto.
p. 810



Affidavit of no
receipts or
payments.

p. 810



{b.) In the case of a oompany -wound np Yoluntarily, or under the supernnon o{



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 138 of 152)