Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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the Act of 1890 ; and (b) in cases where no liquidator has been appointed, or there
is a vacancy in the office of liquidator. He seems, for instance, to have no power
to summon a general meeting (beyond the first), unless he is also acting as liqui-
dator, or is directed by the Court to do so ; but compare Br. 126, 126.

As to resolutions at these meetings, see R. 127.

Information from Liquidator.

The official receiver, after a liquidator's appointmient, is entitled to receive ^m

the latter information, access to books and documents, and aid generally to enable

the official receiver to perform his duties (sect. 4 (8) of 1890), especially those in

relation to private and public examinations, and taking proceedings for misfeasance.

Examinations under Sect, 115 q/*1862.

The official receiver may, it would appear, apply for persons to be privately
examined under sect. 116 of 1862 (see Form 42 of 1890) ; and in such a case the
provisions mentioned below as to appointing a shorthand writer apply. See B. 74
of 1903. And see Practice Directions in Appendix.

He may now, in person or by an assistant official receiver, attend the examination
on whosesoever application the same was ordered, and may take notes and put
questions. R. 76 (1) of 1903. As to his right to inspect the notes of examination,
see R. 76 (2).

Public Examinations.

The official receiver may also make a further report or reports anbodying the
particulars mentioned in sect. 8 (2) with a view to a public examination of pro-
moters and others, and these reports must be considered and explained in the same
manner as the preliminary report. Rr. 63, 64 of 1903. See ExparU Bomm^ (1896)
A. 0. 146 ; Cm/, #<?. Ou^Urt, (1899) 1 Ch, 216.

If an order for public examination is made, the official receiver must apply to Uie
Court to fix the time (B. 66), give notice to the persons to be examined (B. 67), an4
(by advertisement) to the creditors and contributories, and to the Board of Trade to
be gazetted. R. 68, which see also as to gazetting notioee of adjournments.



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OFFICIAL RECEIVERS. 207

The official receiver must, in case hefwe the examination a person ordered to be
pablioly examined absconds, or there is reason to believe he will abscond, or in case
of failure to attend, withont due oanse at the examination, apply for a warrant of
arrest. B. 69. The official receiver most also, where necessary, nominate, and
apply for the appointment of, a shorthand writer. B. 74.

As to costs of the shorthand notes being an expense of realising, see B. 170 (1).

In important matters the official receiver most apply to the Board of Tfade for
anthority to employ a solicitor and connsel to conduct the examination, and see that
they are properly instructed, or otherwise himself take part in the examination.
Sect. 8 (4) of 1890. As to refusal to answer, see B. 76.

As to Board of Trade officers and clerks of the official receiver taking part in
examinations, see B. 185, supra; and see Chap. XLIII.

Taking Proceedings for Misfeasance,

The official receiver may also take proceedings against promotera, directors, &c.,
for misfeasance. Sect. 10 of 1890. Qucere, whether he can take such proceedings
when the winding-np is voluntary or under supervision. His i^pplication may be
supported by a report (based on affidavit or other evidence) to the Court. B. 71 of
1903. As to the application and serving notices and copy reports and affidavits,
see B. 72 ; and as to using notes of public examinations, see B. 73. And see
Chap. XLIV.

As to reports with reference to azrangements and compromises, see B. 77 of 1903,
which is new.

Petitioning for Compuhory Winding-up Order.

The official reodver may also petition for the compulsory winding- np of a com-
pany being wound up voluntarily or under supervision. Sect. 14 of ] 890. And see
Chap. ni.

Application to Punish Persons for Contempt.

The official receiver may apply to the Court to punish persons for contempt in
improperly obtaining inspection of the statement of aflairs (sect. 7 (6)), or of the
liquidator's statement to the Begistrar of Joint Stock Companies. Sect. 15 (1) of
1890.

Removal^ 8fc. of Liquidator.

On a liquidator resigning, or being released or removed, he must, if there is no
new liquidator, deliver his books, papers, and accounts to the official receiver.
B. 158 of 1903.

Costs and Taxation.

Where an application for costs is not made at the time of any particular pro-
oeeding, on any future application as to the costs incident thereto, the official
reoeirer must be served and may appear. B. 164 of 1903.

Disposal of Boohs.

The Board of Trade may now, on the application of the liquidator or official
receiver, order books and papers no longer required to be sold, destroyed, or other-
wise diqpoeed of. See B. 158 (2) of 1903, which is new.



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208 WINDING-UP BY THE COURT. [ChAP. XV.

Fees and JExpenses.

As to the priority of the official reoeiyer's fees and expenseB, and the order of
payment of costs generally, see B. 170 (1) of 1908, and Chap. XLVII.

As to no personal liability for coets of appeal from rejection of proof, see B. 1 18.

Before taxation of the costs or charges of any person employed by the official
receiver, the official reoeiyer mnst produce to the taxing officer the certificate and
(in case of solicitor's costs) the copy of the resolution or authority reqpectiyely
mentioned in B. 166.

As to notice to official receiyer and repayment to him on the reriew of a taxation
by the registrar of a Court other than the High Court, see B. 168.

As to the official receiyer's request to persons employed by him to deliyeir bills for
taxation, see B. 160 of 1903.

The official receiyer must see that notice of the appointment to tax all bills and
charges is given to him, and that the bills or charges, if incurred prior to the
appointment of a liquidator, are duly lodged with him, and in the latter case he
must, on receiving notice of taxation, lodge the bills with the taxing officer.
Br. 161, 162.

The official receiver is entitled to a copy of the bill to be taxed on payment of a
fee, and he must point out taxable items to the liquidator, and may attend or be
represented at the taxation. B. 163. And see Chap. XLVII.

QiUBre, whether the official receiver is entitled to the benefits of the Public Autho-
rities Protection Act, 1893 (66 & 67 Vict. c. 61).

Appeals from Official Receiver,

An appeal lies from the official receiver to the Court —

(a) With regard to the costs and expenses of persons making and verifying the

statement of afiEairs. Sect. 7 (4) of 1890.
{b) From his admission or rejection of a proof for voting purposes at the first

meeting of creditors. Sched. I. r. 11 to Act of 1890.
{e) From any act or decision of his when acting as liquidator (sect. 24 of 1890),
and in particular any act or decision of his in relation to the exanunation,
admission, and rejection of proofs before the appointment of a liquidator,
is subject to the like appeal. B. 112 of 1903.
The time for appealing is the same when the appeal is from his decision as
liquidator in respect of a proof. B. 108.

In Righ Court :
In cases in the High Court by motion (Br. 6 and 8 of 1903), when the official
receiver is acting a$ such ; but when he is acting as liquidator the appeal is
by summons. B. 6 ; National Whole Meal Co., (1892) 2 Ch. 467.

In Courts other than High Court :
By application in open Court. B. 6 of 1903. And see further, Chap. ZLVin.

FOEMS.

A number of the forms in use in a liquidation are applicable whether the official
receiver or someone else is the liquidator of the company, though many of the
forms used by official receivers are only applicable when they are acting as such,
and not as liquidators. Besides the forms set out in this work, other forms are
used by the official receivers. These are of a departmental character, but many of
them might be adopted with great advantage by outside liquidators.



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209



CHAPTER XVI.

STATEMENT OF AFFAIRS AND PEELIMINAEY REPORT.



Statement of Affitirs.

Sect. 7 of 1890. — (1) Where the Court has made an order for winding-np a com- Sabmission
pany, there shall be made out and submitted to the official receiver a statement as to official
to the affairs of the company in the prescribed form, verified by affidavit, and ^^^'^^' ^
showing the particulars of the assets, debts, and liabilities of the company, the » ^'^c*"*^^-
names, residences, and occupations of the creditors of the company, the securities
held by them respectively, the dates when the securities were respectively given,
and each further or other information as may be prescribed or as the official receiver
may require.

(2) The statement shaU be submitted and verified by one or more of the persons By whom,
who are at the time of the winding-up order the directors, and by the person who

is at that time the secretary or other chief officer of the company, or by such of the
persons being or having been directors or officers of the company or having taken
part in the formation of the company at any time within one year before the order
for winding-up the company, as the official receiver, subject to the direction of the
Court, may require to submit, and verify the same.

(3) The statement shaU be submitted within fourteen days from the date of the When made,
order, or within such extended time as the official receiver or the Court may for

speoial reasons appoint.

(4) Any person making or concurring in making the statement and affidavit Expenses,
required by this section shall be allowed, and shall be paid by the official receiver,

out of the assets of the company, such costs and expenses incurred in and about the
preparation and making of such statement and affidavit as the official receiver may
consider reasonable, subject to an appeal to the Court. [See R. 170 of 1903, and
Chap. XLVn.]

(5) If any person, without reasonable excuse, makes default in complying with Default,
the requirements of this section, he shall be liable to a fine not exceeding ten pounds

for every day during which the default continues. [See note to Form 148.]

(6) Any person stating himself in writing to be a creditor or contributory of the Inspection of
company shall be entitled by himself or by his agent at all reasonable times, on stat^ient.
payment of the prescribed fee, to inspect the statement submitted in pursuance of

this section, aod to a copy thereof or extract therefrom. But any person untruth-
fully BO stating himself to be a creditor or contributory shall be gr^ty of a contempt
of court, and ahaU be punishable accordingly on the application of the liquidator or
of the official receiver.

This section is a re-enactment, with variations, of sect. 16 of the Bankruptcy
Act, 1883 ; for the decisi o n on which, see Williams on Bankruptcy, 7th ed. p. 60.



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210



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



Holding of
first meetings,



As regards snb-seot. (2), "the object is to get at the persons who gave the
information which the Court requires for the purposes of the winding-up ; and I
think that even if [a man] had properly and legally ceased to be a director, but
was de facto acting as a director within the prescribed period of a year, he was a
director within the meaning of the section, and subject to the obligation to prepare
and sign the accounts which are required by that section." Per Lord Bussell, C. J.,
New Par Consols, (1898) 1 Q. B. 673, 576.

The old provision that the first meetings of creditors and contributories should
not be held until the company's statement of affairs had been submitted no longer
exists.



Instructions
and filing.



Attendance
on o£Bcial
receiver.



Extending
time.



Subsequent
attondLanoes.



Br. 53—67 of 1908 are as follows :—

68. — (1) Every person who under sect. 7 of the Act of 1890 has been required
by the official receiver to submit and yerify a statement as to the affairs of the
company, shall be furnished by the official receiver with forms and instructions for
the preparation of the statement. The statement shall be made out in duplicate,
one copy of which shall be verified by affidavit. The official receiver shall cause
to be filed with the registrar the verified statement of affairs.

(2) The official receiver may from time to time hold personal interviews with
eyery such person for the purpose of investigating the company's affairs, and it
shall be the duty of every such person to attend on the offioitd receiver at such
time and place as the official receiver may appoint, and give the official receiver all
information that he may require. [Formerly R. 58 of 1 890. Compare Bkcy . Rule 217.
The forms and instructions are supplied at the office of the official receiver on
personal application being made.]

54. — Where any person requires any extension of time for submitting the
statement of affairs, he shall apply to the official receiver, who may, if he thinks
fit, g^ve a written certificate extending the time, which certificate shall be filed with
ihe proceedings in the winding-up, and shall render an application to the Court
unnecessary. [Formerly R. 69 of 1890. Taken from Bkcy. Rule 218. It is the
practice for the official receiver to extend the period from time to time if an extension
is reasonably required. See Form 147.]

65. — After the statement of affairs of a company has been submitted to the
official receiver, it shall be the daty of each person who has made or concurred in
making it, if and when required, to attend on the official receiver and answer all such
questions as may be put to him, and give all such further information as may be
required of him by the official receiver in relation to the statement of affairs.
[Formerly R. 60 of 1890.]

66. — ^Any default in complying with the requirements of sect. 7 of the Act of
1890 may be reported by the official receiver to the Court. [Formerly R. 61 ol
1890. See notes to Form 148, infraJ]

67. — ^A person who is required to make or concur in making any statement of
affairs of a company shall, before incurring any costs or expenses in and about the
preparation and making of the statement, apply to the official receiver for his
sanction, and submit a statement of the estimated costs and expenses which it is
intended to incur ; and, except by order of the Court, no person shall be allowed out
of the assets of the company any costs or expenses which have not, before being
incurred, been sanctioned by the official receiver. [R. 62 of 1890 amended.]

As to the priority of the costs and expenses of persons mnking or concurring in
the statement of affairs, see Chap. XLVII.

As to newspaper comments on a statement of affairs being a contempt of Court,
see Re Hooley, 79 L. T. 706.



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STATEMENT OF AFFAIE8 AND PRELIMINARY REPORT. 211

{TiiU,) Form 146.

* . i . Notice to
Take notice, that a winding-up order in the matter of the above- sabmit state-
named coy was made on the day of , and I have, in pursuance ^^^ ®^ ,

of the provisions of the Cos (Winding-up) Act and Eules printed attend pfBdal;
at the foot hereof, to require you to submit to me, within fourteen '®^^^®'-
days of the date of the sd winding-up order, a statement of affairs,
in duplicate, of the sd coy.

The Cos (Winding-up) Act and Eules.

\_Here are inserted sect, 7, sub-sects, 1 — 5, of the Act of 1890, and the
Rules ©/"lOOS which are applicable J]



Forms and instructions for the preparation of the sd statement of
affairs can be obtained of me, upon applicon.

Dated this day of , 19 — .

, off recr and prov Kqr,

33, Carey Street, Lincoln's Inn, London, W.C.

The aboTe \b practically the form used before the Roles of 1903 came into opera-
tion, and there is no reason to suppose that the practice will be altered.



{Address and Date,)

Sir, Re , Ltd. Form WBa.

I am desired by the off recr to send herewith a notice requiring you Request to
to submit a statement of affairs of this coy. Forms for this purpose concur.

have already been supplied to , with whom I am to suggest that

you should at once confer with a view to having the statement com-
pleted and lodged within the statutory period. In the event of your
being unable to concur in the statement proposed to be submitted by

, forms for enabling you to file a separate statement can be had

on your applying at this department. — I am, Sir, your obedient
servant.

{TitU.) Form 147.

I, , [assistant] off recr under the Cos (Winding-up) Act, 1890, certificate

do hby certify that I have extended the time for submitting the exteuding

statement of affairs of the coy required of from the day meotof

of , 19—, to the day of , 19—. affairs.

Dated this day of , 19—.

, off recr.

See sub-seot. (3) of sect. 7 of the Act of 1890.

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212



WINDING-UP BY THE COUET. [ChAP, XVI.



Form 148.

Order to
submit or
oonour in
statement of
afEairs.



Upon the applicon of X., the off recr and liqr of the above-named
' coy, by summons dated, &c.y and upon hearing the applicant in person,
and no one appearing for the several persons named in the schedule
hto, resplj respts to the sd summons, although duly served with
the sd summons as by a£Et appears ; and upon reading the order to
wind-up, dated, &o., and the report of the off recr, dated, &o., and
filed the, &c., It is ordered that the persons named in the schedule
hto, formerly directors or oflficers of the coy, do within four days after
service of this order upon them resply, submit and verify, or concur in
[making and verifying] a statement as to the affairs of the sd coy,
pursuant to the provisions of sect. 7 of the Cos (Winding-up) Act,
1890, and to the Cos Winding-up Eules. And it is ordered that the
sd several persons named in the schedule hto do pay to the sd X.,

the off recr and liqr, the sum of /., his out-of-pocket expenses

with reference to this applicon. Concentrated Produce Co. (0095 of
1893), Eeg., 19th July, 1893.

And see Forms 148a, 148b.

Such an order is made, under sect. 7 (2) of 1890, where there is a donbt as to who
is the proper person to make the statementi and under sect. 7 (5) and B. 56 of 1903
in case of default in complying with sect. 7. But the application must be made in
each case by summons (not ex parte, but served on the persons required to make the
statement).

Sub-sect. 5 was not ''meant to take away the inherent power of the Courts,
namely, to make such orders as are necessary to give effect to the objects with
which they have to deal, and to enforce such orders, if necessary, by process of the
Court.*' Per Lord Russell, C. J., New Far Consols, (1898) 1 Q. B. 673, 677. The
High Court may therefore order a director or other ofUcer to submit and verify a
statement of affairs ; and if he does not comply with the order, may commit him
for contempt. New Far Consols (No. 2), (1898) 1 Q. B. 669. And as, under sect. 1,
sub-sect. 6 of 1890, ** every Court having jurisdiction to wind up a company shall,
for the purposes of the jurisdiction, have all the powers of the High Court,'* where
the winding-up is in the County Court, that Court may make and enforce in like
manner such an order. S. C. The application must now be made to the judge
personally, and the order will not be made unless he is satisfied that the person
required to make the statement had proper materials for so doing. Columbian Gold
Mines, W. N. (1894) 92.

Sect. 7 (5) of 1890 has been found insufficient, whereas if an order is obtained as
above the defaulter is liable to committal.

Failure to comply with the statutory requirements as to furnishing a proper
statement of affairs is apparently a misdemeanor. Telescriptor Syndicate, (1903)
2 Ch. 174. And such failure is a material and unfavourable fact in considering
whether an application for a stay of winding-up proceedings should be acceded to.
Ibid.



Form 148a. Upon the two several applicons of B., the off recr, It is ordered

Another with *^^* ^-j ^^ > ^^* pursuant to Eule 58 of the Cos Winding-up

directions as Eules, 1890 [now E. 53 of the Companies (Winding-up) Eules, 1903],
to a anoe. ^^j^^j^^ ^^j^ ^^q g^ ^ff j^^ ^^ g^ch time and place as he shall appoint



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STATEMENT OP AFFAIRS AND PRELIMINARY REPORT. 213

from time to time by notice in writing addressed to the sd L., and
served upon the sd L., by being sent by registered letter addressed to

the sd L. at afsd, or other the last-known address for the time

being of the sd L. And it is also ordered that L. do within, &c. [a* in
Form 148], submit and verify or concur in and verify a statement of
the afPairs of the above-named coy, pursuant to, &c. [a* in Form 148],

and that the sd L. do pay to the sd B. the sum of /. for his

ascertained expenses of this applicon. \^ Adjourn summons as to other
respondents, with liberty to restore.'] North- West African Mineral
Concessions, 00259 of 1895. Vaughan Williams, J., 18th Dec. 1895.



Upon the applicon of W., the off recr and prov liqr of the above- Form 148b.
named coy, by summons dated, &c., and upon hearing the applicant Another with
in person, and T., one of the respts to the sd summons, attending in indorsement,
person on the, &c., but not attending this day either in person or by
his Bolor, although he has had due notice of the appointment for the
further hearing of the sd summons, as by afft appears, and upon
reading the order to wind up the above-named coy, dated, &c., and
afft of W., filed, &c., It is ordered that T., a late director of the
above-named coy, do within four days after service of this order
upon him submit and verify or concur in making and verifying a
statement as to the affairs of the sd coy pursuant, &c. [as in Form 148].
And it is ordered that the sd T. do pay, &c. [as in Form 148]. Louis
Tussaud's New Exhibitiony Limited, 00188 of 1897. Wright, J., in Ch.,
May 25th, 1898. Similar order in British and Continental Syndicate,
Limited, 00262 of 1898. Dec. 20th, 1898.

The indorsement on the order is as follows : —

If you, the within-named T., neglect to obey the within order by the
time therein limited, you wiU be liable to process of execution for the
purpose of compelling you to obey the same order.



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214



WINDING-UP BY THE COURT.



[Chap. XVI.



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STATEMENT OF AFFAIRS AND PRELIMINAKY REPORT.



216



n.— As regards Contributories.



Capital issued and allotted, viz. :~

Founders' Shares of £ per

share ( shareholders) . .

(«) Issned as fully paid

Amount called up at £

per share, as per list " L.'* .

Ordinary Shares of £— » per
share ( shareholden) . .

(fl) Issued as fully jMiid

Amount called up at £

per share, as per list ** l£."

F^erence Shares of £ per

share ( shareholders),

(a) Issued as fully paid

Amount called up at £

per share, as per list *' N." .

w -vr.

Amount, if any, paid in ad-
Tance of calls

£

XeM unpaid calls estimated to he
irrecoverable £



Add deficiency to meet liabilities as abore . . . .



Estimated surplus as above
(if any) subject to costs
of liquidation



Total deficiency as ex-
plained in Statement
««0."



I, , of , make oath and say that the foregoing statement

and the several lists hereunto annexed marked are, to the best of

my knowledge and belief, a full, true and complete statement of the

affairs of the above-named coy on the ^— day of , 190 — ^ the date of

the winding-up order.



NoTB. - Tk4 eomm Un oner i$ partieuiarijf ^
rtquttUdf he/ore twearing the €{fldavH, to
ascertain that the fuU nanUf address^ and
description of Ike^deponent ar9 Hated, and
to initial ail croe»ing$-out or other alUrof
tioru on the printed form. A d^cien^ in
the nfidavit m anp of the above respects uHU
entail its refusal hn the Oourt, and will
ne cessi tat e iis being resworn.



Sworn at this •

day of , 190—.

Before me .



Signature .



S;



a) Where capital is issued as partly paid up the form should be altered accordingly.
~>) Add paitiotdiurs of any ol^er capital.



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216



WINDING-UP BY THE COUHT.



[Chap. XVI.



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Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 32 of 152)