Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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to send to the official receiver by B. 41 of 1903. The original order is kept by the
registrar and placed on the file.

Of the three orders so received, one is for service by the official receiver on the
company (B. 41), and another for filing with the Begistrar of Joint Stock Com-
panies (sect. 88 of 1862) ; the third is for the official receiver's own use, and as a
voucher for Ids authority. And see p. 1 16.

Another sealed copy is generally furnished and handed to the petitioner's
solicitor.

The notices required to be sent by the official receiver to the Board of Trade and Advertise-
to the local newspaper have already been referred to in detail. See Chap. IX., ment, &c.
which also contains a statement of the official receiver's initial duties with reference
to service, advertisement, and notices of the order.



Towers and Duties as ex officio Provisional Liquidator.

The powers and duties of the official receiver as provisional liquidator are not
limited or restricted by the Act or the Bules ; but under sect. 12 (3) of 1890, the
exercise of his powers may be controlled by the Court. See also sects. 23 and 24 of
1890. Accordingly, unless the Court otherwise directs, the official receiver, as
ex officio provisional liquidator, may exercise all the powers of a liquidator.

Thus he is a liquidator within sect. 12 of 1890 ; but there being no committee of Sanction
inspection, those things which the liquidator may do with the sanction of the Court, required,
or of the committee of inspection, he may do vdih. the sanction of the Court or of
the Board of Trade. Sect. 9 (9) of 1890 ; B. 188 of 1903. See also sect. 13 of 1890,
and Br. 121—131 of 1903, as to calling meetings ; Br. 80—85 of 1903, as to list
of contributories ; Br. 86—90, as to calls. That the official receiver acting as ex
({^cto liquidator may settle the list of contributories was held by Chitty, J., English
Bank of River Flate, (1892) I Ch. 391.

See, further, as to the powers and duties of the official receiver acting as liqui- Special
dator, Chap. XXI., and in particular as to the following matters :— Board of Trade, duties, &c.
zetoms to ; Books to be kept ; Borrowing ; Calls ; Carrying on business ; Collection
of assets ; Compromises ; Contracts and conveyances ; Contributories, settling list ;
G^^editors. See also as to Debentures and securities, Chap. XXXVII. ; £xamina«
tions. Chaps. XUI. and XLIII. ; Landlords, Chape. XXI. and XXXVU. ;
Meetings, Chap. XXXVI. ; Misfeasance, Chap. XLIV. ; Paying money into
bank, Chap. XXV. ; Possession, as to taking. Chap. XXI. ; Bates and taxes.
Chap. XXXVn. ; Bestraining actions and proceedings, Chap. XXI. ; Sales of



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200 WINDING-UP BY THE COUKT. [ChAP. XV.

properiy, Chap. XXIX. ; BettUnglifitof oontributories, Chap. XXXVIII. ; SoUdtory
Chap. XX. ; Special manager, Chap. XI. ; Transfer of aotionfl, Chap. XL.

As to the offioia] receiver allowing proceedings to be taken in his name, see
Practice Note, W. N. (1894) 166 ; Anglo- Sardinian Antimony Co., W. N. (1894) 166.
And as to when the sanction of the Court to proceedings is required, see Nevf
Zealand Loan, ^c. Co., W. N. (1894) 92.



Duties as Offiidal Receiver.

Departmental It must not be supposed that while attending to the aboye-mentioned matters
instructions, there are not other duties to be performed by the official reoeiTer as aueh. He is

supplied by the Board of Trade with a number of printed forms, and with certain.

departmental instructions which are of a private nature. These instructions cannot.

however, override the provisions of the Acts and Rules, and it may therefore be

convenient to state or refer to such of these provisions as particularly relate to the

office of official receiver.



Company

without

assets.



Incurring Expense.

Where there is reason to suppose that a company ordered to be wound up has no
available assets, the official receiver should at once lay the facts before the Board of
Trade, and apply for its special instructions. See B. 186 of 1903, tupra.



Entries and
inspection.



Becord book.



Cash book.



Submission
to committee.



Books.

Section 21 of 1890 provides generally for liquidators keeping '*in manner pre-
scribed " proper books, making proper entries therein, and affording inspeotion
thereof.

B. 148 of 1908.^The official receiver, until a liquidator is appointed by the Court,
and thereafter the liquidator, shall keep a book to be called tlie ''record book,'* in
which he shall record all minutes, all proceedings had and resolutions passed at any
meeting of creditors or contributories, or of Uie committee of inspection, and all
such matters as may be necessary to g^ve a correct view of his administration of the
company's afiEairs, 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
document to any person other than a member of the committee of inspection,
or the official receiver, or the Board of Trade. [R. 143 of 1890 amended.]

B. 150 of 1908. — (1.) The official receiver, until a liquidator is appointed by the
Court, and thereafter the liquidator [which includes the official receiver if continued
as liquidator], shall keep a book to be called the " cash book ** (which 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 accounts) 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 oommittee of inspection (if any), when
required, and not less than once every three months. [Formerly R. 144 of 1890.]

The "trading account*' is to be kept where the business of the company is
carried on. See R. 154 of 1903, and supra.

The cash book prescribed by the Board of Trade is a most elaborate volume. As
to which, see Chap. XXIV.



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OFFICIAL EECEIVEES. 201

Sendee the aboTe^mentioned books the official reoeiver may find it adyiaable to Other books,
keep a diary or minate book, containing notes of his transactions and negotiationa
in relation to the winding-up cases proceeding under his care.

Heshonld also keep books showing the dates at which all notices to share-
holders and others are sent ont and posted, and by whom they are posted, and such
last-mentioned persons should initial the entries or the summary thereof, so that if
it beoomes necessary to make an affidavit as to the service of any notice or circular,
the person who directed the notice and posted it may be able to swear to the facts
after refreshing his memory by referring to the book.

Betums.

The official reoeiyers being << officers of the Court" (see R. 184 of 1903), must
« make and transmit to the Board of Trade such extracts from their books, and
shall furnish the Board of Trade with such information and returns as the Board of
Trade may from time to time require.'' R. 191 of 1903, but qtutre whether this
rule applies to official reoeiTers.

File of Proceedings.

The official receiyer no longer keeps the file of proceedings, which is now kept by
the reg^istrar ; but when, in the exercise of his functions under the Acts or Rules,
the official receiyer requires ** to inspect or use the file of proceedings, the registrar
sbaU (unless the file is at the tune required for use in Court or by him), on request,
transmit the file of proceedings " to him. R. 20 of 1903.

Memoranda of Advertisements.

The liquidator must file a memorandum of every advertisement appearing in the fHiqcp,
Gazette, and the person inserting any advertisement in a local paper must leave one
copy of such local paper with the official receiver, who must keep such copy, and
place on the file a memorandum of such advertisement. R. 193 of 1903.

Statement of Affairs.

It is no longer absolutely necessary that the statement of affairs should be pre- Notices to
pared before the first meetings of creditors and contributories are held. (See next submit,
page.) Nevertheless, as soon as possible after the making of the winding-up order
the official reoeiver must give notice to ihe directors or other persons mentioned in
sect 7 (2) of 1890, as in Form 146, or the form referred to in the notes thereto (see
Chap. XVI.), to submit or concur in a statement of affairs. R. 53 of 1903. He
must also hold personal interviews with such persons for the purpose of investigating
the company's affairs, and must see that such statement in duplicate is submitted
(one copy being duly verified) within fourteen days from the date of the winding-up
<ffder, or such extended time as he or the Court may appoint. Sect. 7 of 1890 ;
Rr. 63, 64 of 1903. Extensions of time by the certificate of the official receiver are Extension of
very common. See Form 147. The certificate extending time must be filed. R. 64. time.
In case of refusal to submit a statement of affairs^ or otherwise comply with sect. 7
of 1890, the official reoeiver must report such non-compliance to the Court, and
should obtain an order (see Forms 148 and 148a) on the persons in default to make
or submit the statement. Xew Far Qmsolt, (1898) 1 Q. B. 673.

He most plaoe the verified statement on the file of proceedings (R. 63 of 1903), FQin^ fto.



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202



Sommaiy.



WINDING-UP BY THE COUHT. [ChAP. XV,



and most sanction and pay the costs and expenaes of preparing and malring the
statement of affairs.

After the statement of affairs has been filed he most question the persona who
made it with a view to obtaining further information (B. 55 of 1903); afford
inspection of the statement to creditors and oontributoriee (sect. 7 (6) ) ; and applj
for punishment of persons improperly obtaining such inspection. Beot. 7 (6).

A summary of the statement of affairs must also be prepared, and is generally
printed, as it has to be forwarded to each erediior, if possible, before the firrt
meeting. Sohed. I., r. 3 to Act of 1890. The summary, if ready, is generally
forwarded with the notice of meeting and forms of proxy, as to which see it^fra.

For the forms and further information in relation to Statement of Affairs, see
Chap. XVI.

Preliminary Report to Court.

''As soon as practicable after receipt of the statement of affairs,'* the official
receiver must submit a preliminary report [to the Court setting out the matters
mentioned in sect. 8 (1) of 1890, with his opinion thereon. See R. 62 of 1903.
This report may conTcniently be prepared when the summary of the statement of
affairs is prepared for transmission to the creditors and contributories, or at any
rate after the interviews mentioned in B. 53 of 1908. See Form 152.



The Further Beport.

This is to be made under sect. 8 (2) of 1890, and it is upon consideration of this
report that the Court may make an order for public examination under sect. 8 (8)
of 1890. £x parUBamet, (1896) A. C. 146; Civil, fc. Ou^Un, (1899) 1 Ch. 215.

Summoning First Meetings of Creditors and Contributories.

Purposes of It is one of the official receiver's earliest duties to summon the first meetingps of

meetmgs. creditors and contributories to determine whether the appointment of a liquidator

in place of the official receiver and a committee of inspection shall be applied for,
and who shall be members of such committee. Sect. 6 (1) of 1890.

The time and a convenient place of meeting are fixed by the official receiver.
Sched. I. to Act of 1890, r. 4 ; B. 51 of 1903.

When held. If possible, the meetings are to be held within twenty-one days from the winding-

up order, or, if a special manag^er has been appointed,. within a month (Sched. I. to
the Act of 1890, r. 1) ; but it is not now necessary to delay the holding of the
meetings until the statement of affairs has been submitted to the official receiver, as
it was until April, 1895.

Notices. The meetings are summoned by the official receiver sending notices to the orediton

and contributories, and advertising (through the Board of Trade) the time and
place for holding the meetings. Sched. I., r. 2 ; Br. 51, 52 of 1903.

The official receiver also gives notice to the directors and other officers of the
company, who may also be required by him to attend. B. 50 of 1903. And see
Form 156.

Proxies. * With the notices to creditors and contributories the official receiver must send

forms of general and special proxy (taking care that no name is printed or inserted
in the body thereof) (Sched. I., r. 14), and, if it is ready, a print of the summary of
the company's statement of affairs. See ntpra,

Yor the notices, see Forms 154, 155 ; for the proxies, Forms 158 and 169; and
for the summary. Form 151.



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OFFICIAL BECEIVERS. 203

And see generally, as to Fntsr MEsmvoB, Chap. XVII.

In ordinaiy cases the first meetings are held, at any rate in London, at the official Special ar-
receiver's office, but when a large company, having many creditors or oontributories, rangements.
has been ordered to be wound up, it is ueccKsary to hire some room capable of
accommodating a large number of people. With the notices of meeting, &c., in
such a case a ticket of admission may be sent, on which the creditor is required to
state the amount of his debt. Before entering the room, the ticket can be exchanged
for voting papers (see Forms 167 and 168), distributed by clerks at a number of
tables, each clerk undertaking the distribution of papers to creditors whose names
oome under certain letters of the alphabet, as A to C, D to G, &o.



Receiving Proofs and Proxies before the First Meetings,

Before the first meetings are held the official receiver must receive such proofs of
debts as are required to be lodged with him in order to qualify a creditor for voting
at the first meeting (Sohed. I., r. 6 ; B. 104 of 1903), and must administer the oath
to creditors who bring him affidavits of proof for that purpose (B. 96 of 1903). He
must also receive such proxies as are required to be so lodged by creditors or oon-
tributories to entitle them to vote by proxy. Sched. I., rr. 12, 17 ; B. 132 of 1903.

He should also consider whether the proofs sent in are in proper form, having
regard to Sched. L, rr. 7 — 9, and rr. 9L — 104, in order that he may fulfil his duties
as to admitting or rejecting proofs at the meeting nnder Sched. I., r. 11.

He should also consider whether the proxies are valid, having regard to Sched. I.
rr. 12, 13, 16—17 ; Br. 132, 133, 134 of 1903. See, further. Chap. XXXVU.



Nominating Persons to act as Chairmen and use Official Receiver's

Proxies.

He must also consider what course he intends to pursue in acting on proxies given
to himself (Sched. I., r. 19) ; and when there is no probability of his being able to
attend the meeting he must in writing depute some person under his official control
to use these proxies on his behalf, and in such manner as he may direct (B. 133 of
1903), and nominate some person to be the chairman of the meeting^. Sched. I., r. 6.

Presiding at First Meetings.

The official receiver, or some person^ nominated by him as above mentioned, must Duties of
act as chairman of the first meetings (Sched. I., r. 5 ; B. 126 of 1903) ; and admit offidal
or reject (provisionally in case of doubt) proofs for the purpose of voting (Sohed. I., ^^^^^^^*
r. 11) ; and use the proxies appointing the official receiver to act. Sched. I., r. 19.
He must see that there is a proper quorum of creditors or oontributories, as the
case may be.

If a poU is required, the official receiver must bear in mind the provisions of B. 103 Poll, adjourn*
of 1903, with reference to votes of creditors proving in respect of negotiable in- ""^^^^i ^^
stmments or securities. He must also see that the voting is regular, having regard
to the proxies, to Sched. I., r. 24, to the Act of 1890, and to B. 104 of 1903, and
that the resolutions are duly passed in accordance with B. 127 of 1903. His power
to adjourn, subject as aforesaid, is with the consent of the meeting. B. 20 of
Sched. I.

And see fnrtiier, as to EnMT Mbrdicm, GSiap. :^yn.



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204



WINDING-UP BY THE COUET. [ChAP. XV.



Bopoit.



Appointment
of liquidator,

&C.



Minutes and Report

The offioial receiyer must caaae minnt^ of the prooeedings to be drawn np, entered
and signed. Sohed. I., r. 23.

After the meeting has been held, the official receiver, or the chairman appointed
by- him, must report the result of each meeting to the Court (R. 58 (1) of 1903) ;
but in London, notwithstanding R. 128 of 1903, it is not the practice to file a
certified copy of the resolutions— they are, however, stated in the report. And see
Chap. XVII.

Applicatiofia follwoing First Meetings.

If the meetings of creditors and contributories pass the same resolntions or reso-
lutions identical in effect, the official receiver must apply to the Court to make the
necessary appointments to give effect to such determinations. R. 68 (2) of 1903.
In any other case he must apply to the Court to fix a day to consider the reeolu-
tions and determinations, decide the differences (if any), and make the n e o o s oa iy
appointments and orders (R. 58 (2) of 1908) ; and he must advertise the day fixed.
R. 58 (3) of 1903 ; and see Forms 172—176.

R. 2 of April 2, 1895, annulled R. 63 (2) of 1890, and the decision as to what
amounts to a *' difference" under that rule, in Johannuherg Land and Gold Trust,
(1892) 1 Ch. 683, and substituted R. 63 (2a), which is now replaced by R. 68 (2) of
1903.

The official receiver will be heard by the Court in the consideration of the deter-
mination of the meetings. R. 68 (4) of 1903.

And see further, as to the steps to be taken in connection with the appointment
of liquidator and committee of inspection, Chap. XVIII.



Froof of Debts.

Receipt of Whether before or after the first meeting's of creditors and contributories, and

pi^oofs prior to the liquidator being appointed, the offioial receiyer is the proper person to

receive proof b of debts. R. 92 of 1903. If a liquidator has not previously been
appointed, he may, within twenty-eight days after the voting, require a secured
creditor who has estimated the value of his security under Sched. I., r. 9, to give
up his security on payment of the estimated value plus 20 per cent., as provided by
Sched. I., r. 10.

See Sched. I. to Act of 1890, as to proofs at first meetings, and, generally,
Rr. 91—118 of 1908. Rr. 92, 94, 96, 103—105, and 112—118 of 1903, spedally refer to
the official receiver. He has, before the appointment of a liquidator, all the powers
of a liquidator as to examination, admission and rejection of proofs, subject to the
like appeal. R. 112.

Piling. When no other liquidator is appointed, he must, before paying a dividend, file all

proofs tendered with a list mentioned in the rule. R. 1 13.

Dividend. As to filing proofs when there is an appeal, see injra. Subject to an extension of

time by the Court, he must, as liquidator, not later than fourteen days from the
latest date specified in his notice of intention to declare a dividend as the time for
lodging proofs, in writing admit or reject every proof lodged with him, or require
further evideDce. R. 116 of 1903.

. As to fixing a time within which creditors are to prove or be excluded, see the
new provision in R. 106 of 1903.
See further, as to proof of debts, Obap. XXXVU.



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OFFICIAL BECEIVEES. 206

Acting as Liquidator and Committee of Inspection where none
appointed, or in case of Vacancy.

If no Hqaidator is appdnted by the Ooort, ''the official receiTer shall be the No other
Kquidator of the oompany." Sect. 6 (3) of 1890. Hquidator.

If there be no committee of inspection, any act or thing, direction or permission No conmiittee.
required to be done or given by the committee may, subject to the directions of the
Board of Trade, obtained on t^e application of the liquidator, be exercised by the
official receiver. Sect. 9 (9) of 1890, and B. 188 of 1903. If there is no liquidator
other than the official receiver, it is understood that this official must apply to the
Board of Trade for special directions as to any particular thing to be done. As to
acts, &c., to be done by the committee of inspection, see Chap. XXII.

Every appointment of a liquidator or committee of inspection shall be advertised Advertise-
by the liquidator in such manner as the Court directs, immediately after the nients.
appointment has been made and the liquidator has given the required security.
K. 58 (6) of 1903. But queere whether this rule applies to the official receiver.

On the death, resignation, or removal of a liquidator, the same performance must Vacancy.
be repeated, the meetings being again summoned by the official receiver on the
request of not less than one-tenth in value of the creditors or oontributories,
but when the liquidator is released the official receiver remains liquidator. B. 68 (7)
of 1903.

Duties on another Person being appointed Liquidator.

If a liquidator is appdnted, the official receiver transmits a copy of the order to (Gazetting, &o.
the Board of Trade, which, as soon as the liquidator has given security, gazettes
the order; but the expense is paid by the liquidator. B. 58 (5) of 1903. As to
filing memorandum of gazetting, see tupra.

As to the official receiver accounting to a liquidator appointed by the Court, the Accounts,
steps to be taken if the liquidator is dissatisfied with the account, and the manner
in which the official receiver accounts to the Board of Trade, see B. 187 of 1908,
*9ipra.

The official receiver must also g^ve the liquidator possession of the company's Fossessiou
property, if the liquidator has repaid him all proper fees, costs, diarges, imd and informa-
ad>'ances, and interest on advances. The liquidator must also pay the offidal ^^^ giyen.
receiver all fees, &c., not paid before the former takes possession, whether incurred
before or after the liquidator takes possession ; and for all these things the official
recdver has a lien on the assets. B. 144 (1), (2).

The official receiver must also hand to ,the liquidator all proofs of debts, first
making a list and taking a receipt. B. 105 of 1903.

If so requested, the official recdver must give the liquidator all necessary
information as to the affairs and estate of the company. B. 144 (3) of 1903.

The official recdver must also see that every special manager and liquidator g^ves Special
in proper time, and duly keeps up afterwards, his security, and must report any manager,
failure to do dther to the Court B. 61 of 1903.

Effect of Non-Appointment, or Vacancy in Office, of Outside
Liquidator.
Besides being liquidator where no liquidator is appointed (tupra)^ the official
teodver becomes liquidator, by virtue of his office, during any vacancy in the office
of liquidator. Sect. 4 (4) of 1890. And see B. 58 of 1908 as to rdease.

Where the official reodver is liquidator, he is styled '< official reodver and
liquidator." B. 50 of 1903.



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206



Special
privileges of
official
receiver.



WINDING-UP BY THB COURT. [ChAP. XV.



When acting as liqoidator, the official receiver has certain powers and privileges
not otherwise attaching to the office : —

(a) Whether provisional liquidator or otherwise, he may apply for the appoint-

ment of a special manager (sect. 5 of 1890), who mnst aoooont to the official
receiver. R. 49 of 1903.

(b) The rules as to a liquidator's g^iving security do not apply to the official

receiver when acting as such. R. 60 of 1903.
{e) The provisions of the rules as to liquidators accounting do not apply to the
official receiver when liquidator, but he accounts as the Board of Trade from
time to time directs. R. 187 (3) of 1903.
But in the Rules of 1903, << unless the context or subject-matter otherwise
requires .... 'liquidator' includes an official receiver when acting as liquidator."
R. 2 of 1903.
As to the powers and duties of liquidators generally, see tn/ra. Chap. XXI.

General Meetings of Creditors and Contributories.

Rr. 121—131 of 1903 relate to these meetings, and in some of them the official
receiver is mentioned. But it would seem that his duties or powers, as pointed out
by the rules in which he is mentioned, only exist (a) with reference to first meetiugs,
the Rules of 1903 being supplementary in this respect to the mles in Sohed. I. of



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 31 of 152)