Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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sd W. and F. in like manner as the same might have been carried on
by the sd F. in case he had not died. Tecoma Stiver Mining Co..^
Hall, V.-C, 26th July, 1877. B. 1473.

See also Dynevor Collieries Co,, W. N. (1878) 199, where a similar order was made,
the petitioner having died before the hearing of the petition. And see Commercial
Bank of London, W. N. (1888) 214.

See also Bum ^ Co., Kay, J., 16th Nov. 1886 (A. 1630), where the petitioner had
died after the winding- np order.



Upon peton of E. L. B., &c., this day preferred unto this Ct, Form 69.

who alleged that on the day of Feb. 1891, M. L. and the petr r~~.

E. L. B. preferred a peton to this Cb in the above-mentd matter, application
praying Itcinding-up peton^ ; that the sd M. L. died on the 20th day of ^^^^^^^^
April, 1891, and that letters of admon of the estate of the sd M. L.
were on the 6th day of May, 1891, granted to the petr A. L., It was
therefore prayed, and is accordingly ordered that the petr be at
liberty to continue and carry on the sd peton in the same manner as
the sd M. L. and E. L. P. might have done if the sd M. L. had not
died. National Wholemeal, ^"c, Co., Kekewich, J., 8th May, 1891.

P. K



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130 WINDING-UT> BY THE COURT. [ChAP. VTII.



Striking out Petitioner's Name.

Form 70. Upon mofdoD, &c., Order that the name of E. be struck out as one of

Order strik- ^® ^ petrs, on the ground that his name was used without his

ing not consent or authority. And order the respts to pay to the said B. his

petitioner's ^^^ ^f ^^^ motion, to be taxed by the taxing-master as between
name. ' .^ o

Bolor and client. Netherthorpe Freehold, Ohitty, J., 7th Dec. 1888.

B. 1763.



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131



CHAPTER IX.

WINDING-UP ORDERS — AND NOTICES, SERVICE, AND ADVERTISEMENT
THEREOF ; AND STAYING PROCEEDINGS.



Provisional Orders.

Thb practice whicli existed prior to 1892 of pronouncing a winding-
up order, but directing that it should not be drawn up before a
certain day if the company comj^ed with certain conditions — 0.^.,
paid the petitioner's debt and costs in the meantime — has long been
discontinued. See Baker, Tuckers Sf Co,, W. N. (1894) 33. The
reason for this alteration is that notice (see infra) has to be given to
the official receiver on the same day that the order is made. He there-
upon becomes provisional liquidator (sect. 4 of 1 890) and takes posses-
sion of the assets. Eules 78 and 79 of 1903.

When there are sanguine hopes of an early settiement, the practice
is now to adjourn the petition to a day named, with an intimation that
if the debt and costs are not paid in the meantime a winding-up order
will then be made without hearing further evidence or argument ; but
the petitioner must appear on the day to which the petition is adjourned
and apply for the order.

Notice to Official Receiver.

B. 87 of 1908. — ^When an order for the winding-up of a company or for the
appointment of the official receiver as provisional liquidator, prior to the making of
an Older for the winding-np of the company, has been prononnoed in Court, the
xegirtiar shall, on the same day, send to the official receiver a notice informing him
diat the order has been prononnoed.

The notioe may be in Forms 13 and 14 respectively, with such variations as
cixcnmstanoee may require. [Formerly E. 22 of April, 1892. See Form 71.]



{TitU.) Form 71.

To the Off Eecr of the Ct. Notification

(Address.) ^ omoM

.^_ receiver of

Orders pronounced this day by the Honorable Mr. Justice orders pro-

[or, as the case may he] on petons for winding-up of cos under the nounoedon

k2



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13^



petition for
winding-up.
Form 13 of
1903.



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

Cos Acts, 1862 to 1900. \_The schedule annexed contains four columns,
headed respectively: — **Naine of Company;" **Eegi8tered Office of
Company;" ** Petitioner's Solicitor;" **Date of Presentation of
Petition."]

In the High Conrt it has for some time been the practice to give a separate noti-
fication of each compulsory order.



Completion of Ordeb.

B. 88 of 1908.— It shall be the duty of the petitioner, or his solicitor or London
ag^t, and of all other persons who have appeared on the hearing of the petition, at
latest on the day following the day on which an order for the winding-up of a
company is pronounced in Court, to leave at the registrar's office all the documents
required for the purpose of enabling the registrar to complete the order forthwith.
[R. 23 of April, 1892, varied.]

As to the meaning of ^* Registrar " in the rules, see R. 2 of 1903.

When the petitioner neglected to draw up the order, and a debenture holder's
action was pending in which steps were being taken to realize the assets, leave was
given to a creditor, who had not appeared on the petition, to draw up the order.
South Metropolitan^ ^. Co., W. N. (1891) 51. But see R. 39 of 1903, infra.

B. 89 of 1908. — It shall not be necessary for the registrar to make an appointment
to settle the order, or to give notice to any of the parties thereto, unless in any par-
ticular case the special circumstances make an appointment or notice necessary.
[Formerly R. 24 of April, 1892.]



Order for
winding-up,
Form 15 of
1903.



(TitU.)

Fonn 78. Upon the peton of the above-named coy [or A. B., of, &o., a creditor

{or contributoiy] of the above-named ooy], on the day ol ,

19 — , preferred unto the Ct, and upon hearing for the petr, and

— for , and upon reading the sd peton, an afft of (the sd petr),

filed, &c., verifying the sd peton, an afft of L. M., filed the day of

, 19 — , the London Gazette of the day of , 19 — , the

newspaper of the day of [enter any other papers'], each

containing an advertisement of the sd peton [enter any other evidence'],

This Ct doth order that the sd Coy be wound up by this Ct under

the provisions of the Cos Acts, 1862 to 1900, and that [one of] the off
recr[sj attached to this Ct be constituted prov liqr of the affairs of the coy.

Note. — It will be the duty of the directors and of the secretary or
other chief officer of the coy, as the off recr may require, to attend on

the off recr at [insert the place at which attendance is required]

forthwith on the service of this order.

The off recr's offices iare open every weekday from 10 a.m. to 4 p.m.,
except —days, when they close at — p.m.

The name of the official receiver is not now inserted. See Form 72a.



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WINDING-UP ORDERS, 133



{TUle.)

Upon the peton of ["the above-mentd coy," or A. B., of, &c.], a Form 72a.

[" creditor" or ** contributory "] of the above-mentd coy on the ^~T I

day of y 19 — , preferred unto this Ct, and upon hearing counsel winding-up,

for the petr, for the above-mentd coy [where the coy does not appear^ Usual form,

thefoUowing words must he substituted for those in italics, viz., " and no

one appearing for the above-named coy, although duly served with

the sd peton, as appears by the a£Pt of C. D., filed, &c.], and for the

several persons named in the first schedule hto, creditors supporting .

the sd peton, for the several ^persons named in the second schedule

hto, creditors opposing the sd peton, and for the several persons

named in the third schedule hto, contributories supporting the sd

peton, &o., and upon reading the sd peton, an a£Et of ['^ the sd petr"]

filed the day of — — , 19 — (verifying the sd peton), the London

Gazette, dated the day of -^ , 19 — , and the Times and Standard

e,nd Daily News newspapers, all dated the day of , 19 — ,

and each containing an advertisement of the sd peton, an afft of ,

filed the day of , a joint afft of and , filed the

day of , &c,, and the several exhibits in the sd affts referred to

[enter any other document or other evidence, e.y,, " and the order, dated,
&c." {appointing prov liqr), or " and upon hearing the evidence of T.,
taken upon his oral examination before this Ct "].

This Ct doth order that the sd [name of coy in full] be wound up by
this Ct under the provisions of the Cos Acts^ 1862 to 1900.

And it is ordered that one of the o£E recrs attached to this Ct be
constituted prov liqr of the affairs of the sd coy.

And it is ordered that the costs of the petr and of the sd coy [and of
the creditors and contributories supporting the peton] be taxed and
pd out of the assets of the sd coy [but that on such taxation only one
set of costs is to be allowed to the creditors supporting the peton, and
one set of costs to the contributories supporting the peton].

Note. — It will be the duty of the person who is the secretary or
chief officer of the coy, and such of the persons who are liable to make
out or concur in making out the coy's statement of affairs as the off
reor may require him or them, to attend on the off recr forthwith on
the service of this order.

The off recr's offices, 33, Carey Street, London, W.C, are open
every weekday from ten a,m. to four p.m., except on Saturdays, when
they dose at two p,m.

The aboYO fonn was the one actually nsed prior to 1903, and was based on
the form for which Form 15 of 1903 (Form 72, supra), was substitated.



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134 WINBING-UP BY THE COUET. [ChAP. IX.

As TO Costs.

Under the practice prior to 1891, the usual order as to costs where a winding-np
order was made was to give the petitioner and the company, and the oontribntories
and creditors supporting the petition, their costs, but only one set among the con-
tributories, and one among the creditors. Humber Ironworks Co., 2 £q. 16; 35
Beav. 346; European Banking Co., 2 Eq. 621 ; 35 L. J. Ch. 690; Feckham Trams,
67 L. J. Ch. 462. And this order is generally made under the present practice,
the order being, however, only made in favour of those creditors and contributoriea
who have in due time given notice of intention to appear. See Chap. VII.

As to giving one set of costs only where the same solicitor appears for two or
more parties, see supra, Chap. VIII., p. 118.

If the petition makea personal charges against any director or member, e.ff,, of
fraud or misconduct, such director or member may appear separately, and if the
petition is dismissed, or the charge is disposed of, the Court may order the petitioner
to pay the costs of such separate appearances. Anglo-Oreek Co., 2 Eq. 11.

Where a winding-up petition is dismissed on the g^und that the company
being an illegal one, the Court has no jurisdiction, the company is not in a poeitioii
to ask for costs. Ilfracotnbe, ^e, Soc, (1901) 1 Ch. 102.

As to the costs of a voluntary liquidator appearing at the hearing, see A, W. HaU
# Co., W. N. (1886) 190 ; Mont de Fieti of England, W. N. (1892) 166.

As to costs of concurrent petitions, see ir\fra, note to Form 76.

Under the old practice, the order, where a provisional liquidator had been
appointed, usually provided for ** the costs of and relating to the said petition

includiog the costs of and consequent upon the appointment of the said aa

provisional liquidator,*' and it may be proper to follow this practice. And where
a person other than the official receiver has been already appointed provisional
liquidator, it may be necessary to insert, before the foot-note, the following words : —
** And H., who was by the said order, dated, &c., appointed provisional liquidator
of the said company, is to be at liberty to apply in chambers as to passing his
accounts, and for his costs and remuneration.*' Unionist Club, Limtd, U. 0126 of
1891. But the official receiver is the only person now usually appointed as int«nm
provisional liquidator.

Having regard to sect. 4 of 1890, and the decisions in North Wales Gunpowder Co.,
(1892) 2 Q. B. 220, and John Reid # Sons, Limtd, (1900) 2 Q. B. G34, the words in
the order constituting the official receiver provisional liquidator are surplusage.
After the number of official receivers attached to the High Court was increased,
the practice of stating the receiver's christian name and surname was diaoontinaed.
See note to Form 76b.

As TO Footnote op Winding-up Order.

B. 40 of 1908. — An order to wind up a company shall contain at the foot thereof
a notice stating that it will be the duty of the person who is at the time secretary
or chief officer of the company, and of such of the persons who are liable to make
out or concur in making out the company's statement of affairs as the official
receiver may require, to attoud on the official receiver forthwith on the service
thereof at the place mentioned therein. [Formerly R. 38 of 1890.]

As to the persons who are to make out the statement of affairs, see sect. 7 of 1890,
infra, Chap. XVI.

As to the attendance of such persons on the official receiver, see R. 63 of 1903.

As to the consequences of non-compliance with this rule, see Teleseriptor Syndicate,'
(1903) 2 Ch. 175.



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WINDING-UP ORDERS. 185

Where an interim provisional liquidator had been appointed, the following words Interim

■were inserted in the winding-up order : " And it is ordered that Mr. , the pw>"^Mional

official receiver attached to this Court, be continued provisional liquidator of the ^
affairs of the said company, but with the limitations and restrictions imposed by
the said order dated," ftc. Chmmereial Banking Co, of Sydney^ 00142 of 1893,
Yaughan WilUams, J., 7th June, 1893.



And it is ordered that no steps or proceedings are to be taken under Form 72b.
this order without the sanction of this Ct. Queensland National Bank, j. ^ ^
00138 and 00141 of 1893, Vaughan Williams, J., 8th July, 1893.

In the case of foreign and colonial companies such restrictions are not uncommon.
Commercial Bank of South Australia, 33 C. D. 174 ; Federal Bank of Australia, W. N.
(1893) 46, 77; Standard Bank of Australia, 00125 of 1893; Natumal Bank of Australia,
00126 of 1893 ; Commercial Bank of Australia, 00174 of 1896, 5th Aug. 1896. And
one order was made with the sole view of having oertain matters explained in an
examination under sect. 115 of 1862. Industrial Contract Corporation, Nov. 1899.

And where the registration of a building society had been cancelled under
sect. 6 (5) of the Building Societies Act, 1894, a winding-up order was made to
enable liabilities to be enforced, and so that the official receiver might get certain
moneys from a bank, the order provided that, without leave, no proceeding's should
be taken under it beyond obtaining the money from the bank. Be Grosvenor, ^,
Soe., W. N. (1902) 115.

Quite recently Buddey, J., introduced a form of order restricted, '* unless and
until further directions are given by the Court,** to statement of affairs, public
examination, inquiry as to available assets, and costs. New Imperial Electric
Lamp Co,, Feb. 18th, 1903 ; Garrucha Iron Mining Co., Oct. 28th, 1903 ; Empire
Phonograph Co., Nov. 3rd, 1903. But no further orders in this form are to be
Blade. See Practioe Note, Dec. 1, 1903, in 20 L. T. B. 73.



Upon the application by summons, &c., it is ordered that the re- Form 72o.
strictions against taking proceedings under the said order [for winding- OjderreUx~
up] of the dth August, 1902, be removed. Bjme, J., Olohe Exploration ing fetter.
Syndicate^ Limited, 2 Dec. 1902.



And the Ct doth hby limit and restrict the powers of the sd prov Form 72d.
liqr to the following acts, viz., to take possession of and collect and j^otherre-
protect the assets of the coy, but not to distribute or part with the same strictive order,
until further order, and the off recr as such prov liqr is to be at liberty
to employ the London manager of the sd coy to do such things as the
off recr may consider neoessaiy. Commercial Bank of Auttralia, 0094
of 1893, Yaughan Williams, J., 18 May, 1893.

The powers of such prov liqr to be limtd to taking possession of, Form 72e.
collecting, and protecting the English assets of the sd coy, such assets Another.



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136



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



not to be distributed or parted with, and no other steps or proceedings
to be taken under this order without the leave of the Ct. And notice
of any applicon to the Ct for any such leave is to be served upon the
liqr acting in the liquidation proceedings pending in Belgium with
reference to the sd coy, or upon the English solor of such liqr. Victoria
Date Co., 00274 of 1898, Phillimore, J., Sept. 7th, 1898.



Form 73.

Clause in

winding-up

order, after

appointment

of outside

provisional

liquidator.



And it is ordered that the sd 0. do pass his account and be dis-
charged, and his recognizance and bond, dated, &c., be vacated, and
that the sd C. is to be at liberty to apply for any balance due to him
on such account. National Wholemeal Co., 41 of 1891, Kekewich, J.,
9th May, 1891.

But it is not now the practice to appoint an outside provisional liquidator.



Form 74.

Another.



And it is ordered that the sd N., who by the sd order of the of

-, was appointed prov liqr of the sd coy, do pass his account as



prov liqr, and do pay to the off recr and prov liqr the balance, if any,
found due from him as such prov liqr, within seven days after the
passing of such account, and upon such payment being made, or upon
its being certified that there is no balance due from him, it is ordered

that the recognizance of the sd , and the joint and several bond

of the sd , and the Society, Limtd, dated resply, &c., be

vacated, and* in the event of a balance being found due to the sd

on the sd account, it is ordered that he be at liberty to apply for
payment of such balance.



Form 76.

Winding-up
order on two
petitions.



Upon the peton of E. W. S., of , a creditor of the above-named

coy, on the day of preferred unto this Ct, and upon the

peton of E. P., of , another creditor of the above-named coy, on

the day of preferred unto this Ct, and upon hearing counsel

for the respive petrs for the above-named coy, and for L. C. A., a
creditor, and upon reading the said petons resply, an afft of the sd

E. W. S., filed the day of , verifying the first-mentd peton,

and an afft of the sd E. P., verifying the seoondly-mentd peton, the
London Gazette, the Times newspaper, and the Standard newspaper,

all of the day of , each containing an advertisement of the

first-mentd peton, and the London Gazette, &c., each containing an
advertisement of the secondly-mentd peton, an afft of E. W. S., filed

the day of , an afft, &c., a joint afft of A. A. E. and J. C. W.,

filed, &c., and two several affts of the sd L. C. A., filed resply, &c.,



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WINDING-UP ORDERS. 137

This Ct doth order that the B. &c. Coy, Limtd, be wound up by
this Ct under the provisions of the Cos Acts, [1862 to 1890]. And
order that the petrs resply, and the sd coy, and the sd L. C. A., be
allowed their costs of or relating to the sd petons resply, out of the
assets of the sd coy, such costs to be taxed by the taxing officer.
Briiuh Guardian Life Assur. Co.y Hall, V.-C, 2nd May, 1876. A. 951.



Upon the peton of H. and M. on the Slst Jan. 1879, preferred Form 76.
[^witiding-up peton], and upon hearing counsel for the petrs, and for 8., q^^ allow-
a creditor, and upon reading the sd peton, and it being alleged that ing costs of
an order dated 10th Feb. 1879, has been made for the compulsory !J^5^^
winding-up of the sd coy, and upon reading the sd order : This Ct doth
not think fit to make any order on this peton, but doth order that the
costs of the sd petrs, and of the sd S. of this applicon, be costs in the
winding-up of the sd coy. Medium for Sales and Exchanges, Hall,
V.-C, 14th Feb. 1879. B. 427. - And see Mynyddgorddhu Co., Bacon,
V.-C, 13th Feb. 1883. B. 269.



Costs of Concurrent Petitions.

When one petition has been presented and is pending, the presentation of a
second petition is, primA facie, unjustifiable. Prior to the making of R. 2 of Mar.
1893, for which R. 36 of 1903, supra, p. 120, is now substituted, it might, however,
be justified if the petition alleged that the first was collusive, or not presented bond
fide; but the facts alleged had to be proved {Building Societies^ Trust, 44 C. D. 140),
and if they were proved, the first petition was dismissed and the order made on the
seoond. R. 36 of 1903, however, shows that the proper practice now is to appear on
the petition and ask to be substituted as petitioner in the place of the collusive
petitioner. But, even now, until notice of the presentation of a prior petition, steps
may be taken with a view to petitioning, and the Court may allow the costs up to
the time when notice is received of the prior petition — i.e., generally, the time when
the second petition is presented. General Finatteial Bank, 20 G. D. 276 ; Sheringham
Dev. Co., W. N. (1893) 5 ; Scott and Jackson, W. N. (1893) 184. And see note to
Form 24.



Copies, Service and Notices of Winding-up Order.

B. 41 of 1908.— (1) When an order that a company be wound up, or for the
appointment of the official receiver as provisional liquidator, has been made : —

(a) Three copies of the order, sealed with the seal of the Court, shall forthwith be Copies for

sent by post or otherwise by the registrar to the official receiver, official
[Formerly R. 39 of 1890.] receiver.

(b) The official receiver shall cause a sealed copy of the order to wind up the Service on

company to be served upon the secretary or other chief officer of the company.



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138



WIUJDING-UP BY THE COURT. [ChAP. IX.



Notioe to
Board of
Trade.



company at the registered office of the company (if any), cor upon such
other person or persons, or in such other manner as the Conrt may direct
[formerly R. 40 of 1890], and if the order is that the company be wound up
by the Court shall forward to the Reg^istrar of Joint Stock Companies the
copy of the order which by ciect. 88 of the Companies Act, 1862, is directed
to be 80 forwarded by the company. [This sub-clause is new.]

{c) The official receiver shall forthwith give notice of the order to the Board of
Trade, who shall forthwith cause such notice to be gazetted.

(d) The official receiver shall forthwith send notice of the order to such local
paper as the Board of Trade may from time to time direct, or, in default of
such direction, as he may select. [Sub-clauses 3 and 4, formerly R. 41
of 1890.]

(2) [See p. 140.]



The rule apparently does not apply when an order is made, before the winding-up
order, appointing the official receiver as interim provisional liquidator. See R. 37
of 1903.

Sub-clause (1) of the above rule is to the same effect as R. 39 of 1R90, which
required three copies to be sent to the official receiver. After the separate registrar's
office of the High Court was established the file was directed to be kept at that
office instead of by the official receiver as theretofore. Two ooples only were sent
to the official receiver, and the third copy was filed.

The official receiver's copies are disposed of as follows : —

One is kept for reference and other use,

Another is served on the secretary under R. 41 (1) (b).

The third — for three copies ought certainly to be sent — ^will be forwarded to
the Registrar of Joint Stock Companies under R. 41 (1) (b) of 1903, when sect. 88
of 1862 applies. That section is as follows : —



Copy for
joint stock
registrar.



Beet. 88 of 1862. — ^When an order has been made for winding-up a company under
this Act, a copy of such order shall forthwith be forwarded by the company to the
Registrar of Joint Stock Companies, who shall make a minute thereof in his books
relating to the company.

This section is part of the gr^^up coming under the heading of ** Winding-up by
Court," but, having regard to sect. 161, it applies to supervision orders, and it might
well be contended, therefore, that R. 41 of 1903, or, at any rate, sub-dause (1) (b)
of it, applied so as to throw on the official receiver the duty of sending a copy of the
order to the Registrar of Joint Stock Companies, if the rule were not confined in its
operation to compulsory orders.

R. 41 (1) (b) is made on the assumption that sect. 88 of 1862 does not apply to
supervision orders. Nevertheless, sect. 88 does seem to apply to supervision orders,
and if this is the case, the duty as to forwarding the copy order is on the liquidator.

Orders for substituted service of winding-up orders will be in much the same
form as special orders for service of petitions, as to which see Chap. I V,



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 23 of 152)