Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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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 45 of 152)
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before the day of , 19 — , or within seven days after service

of the order to be made on this applicon, to send to the Registrar of
Joint Stock Cos a statement in the prescribed form, and containing
the prescribed particulars with respect to the proceedings in and
position of the liquidation of the above-named coy, or that such
further or other order may be made in the premises as to the Ot shall
seem meet, and that the said F. A. B. may be ordered to pay the
applicant's costs of this applicon. Dated, &c.

H. Ellis Ctjuliffe, Solicitor,
To F. A. R., the Board of Trade,

liqr of the above-named 1, Horse Guards Avenue,

coy, and his solors. Whitehall, S.W.

An order was made on the above notice of motion in G. Cope, Dixon, fc. Co,,
Wright, J., May 1, 1901. The motion was supported by affidavits— (1) by the
Beg^trar of Joint Stock Companies, stating the date of incorporation of the com-
pany, the registration of the special resolution for voluntary winding-up, the dates
of the meetings at which the resolution was passed and confirmed, and tiie then
situation of the company's registered office ; and (2) by an official of the Board of
Trade stating that an order had been made by the Board on the liquidator to
submit the account on affidavit, that an affidavit of no receipts or payments only
had been made by the liquidator, that a letter (exhibited) had been sent to the
liquidator requesting him to give certain particulars, and that he had not complied
with the Board's directions.



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PBOCEDURE UNDEE S. 16 OP 1890. 327

Payment in of Unclaimed and Undistributed Assets, fonn 235.

Cos (Winding-up) Act, 1890, s. 15. foSj^^m

Form 0. No. 1.— AppUcation for Eeceivable Order. E. 0. No. orf^^*i3i)

I, A. B. of [^itate address and occupation^ liqr of the under- ^°™J ^'*

mentd coy, hby apply to the Board of Trade for a receivable order
to pay into the cob liquidation account at the Bank of England the
soma of which the following are the particulars : —

[^Name of coy .]

[State whether wound up voluntarily y or by order of the Ct, or under the

supervision of the CV.]
\l)ate of Winding-up Order or of resolution for voluntary winding-up

(as the case may be).]

Here follow four columns.

Col, 1 is headed — "Nature of fund, whether dividend (first or
second, &c.), composition instalment, undistributed balance, or what
other fund.

''In the case of dividends distinguish between amounts due to
creditors and to contributories."

[^And in the column itself are the following words :]

" Undistributed balance.''

\_And beneath :]

''Dividends or other apportioned amounts remaining unclaimed or
impaid, viz. : — "

Col, 2 is headed — " Unclaimed dividends, or undistributed moneys
which have remained unclaimed or undistributed for six months."

[ This column is sub-divided into three parts^ headed resply — ]

(a) " Names and addresses of persons, if any, to whom dividends,
or other funds are due.*' (b) " Date when dividend (if any) declared,"
(c) "Amount."

Col. 3 is headed — "These columns to be filled in by Board of Trade,"
and is sub-divided into four parts, headed resply : —

" No. of paying-out order."

" Date of payment out."

"Amount of payment out."

"Examined."

Col, 4 is headed — " Remarks."

Under parts (a) and (b) of coL 2 are the words—" Further amount
of dividend, if any, as per schedule attached." These additional
schedules should only be used when the space in this form is insufficient.
Beneath this are the words, " Total remittance." Beneath the columns



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.828



WINDING-UP BY THE COUKT. [ChAP. XXIV.



are spaces for date and signature ; and the words, "Note. — ^The person
paying in should add any other particulars that the circumstances
render expedient. He is responsible lor the full disclosure of all the
facts necessary for his discharge. An abstract of the particulars on
this form should be made on Form C, No. 2 [Form 237, infra'], and
both forms should be returned to the Inspector-General in Bank-
ruptcy, 1, Horse Guards Avenue, Whitehall, London, S.W."

The above form may be obtained from the Board of Trade, and the paying-in or
receivable order (see next form) is an authority to Bank of England to receive the
payment. See R. 172 (4) of 1903, supra.



Form 236. Bemittances may be sent, accompanied by this receivable order, either to the
Bank of England, or to the Branch Bank of England, Law Courts, London, E.G.



Beceivable
order under
Rule 174 (4)
of 1903.



Cos Liquidation Account.

No. . Eeceivable Order.

Name of Coy .

Board of Trade, 19 — .

Please to receive from the sum of £ , and place the same

to the credit of the cos liquidation account.

Cosmo Monehousb.
To the Agent of the Bank of England, Law Cts Branch, London, E.C.
N.B. — All drafts and cheques to be drawn in favour of the cashiers
of the Bank of England or order, and crossed '* Bank of England."



Form 237.

Certificate of
receipt nnder
sect. 16 (3),
and abstract
of application
theraor.
Form 0.,
No. 2.



Cos (Winding-up) Act, 1890, s. 15.
Form C. (No. 2).— -Certificate.

Abstract of Particulars of Application,
[Name of coy."]
[State whether wound up voluntarily, or by order of the Ct, or under the

supervision of the CV.]
[Date of winding-up order or of resolution for voluntary winding-up (as
the case may be).]
Amoimt proposed to be remitted — £ s. d.

Undistributed balance „ „

Dividends or other apportioned amounts „ „

Total £



Dated this



day of •



19—.



(Signature) .



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PBOCEDUBE UNDER S. 16 OP 1890.

^The certificate of receipt below is to be fiUed up by the Board of
Trade,']
Eeceivable Order No. .

It is hby certified tliat [name of liqr"] did on the day of ,

19 — , pay into the cos liquidation account at the Bank of England

the sum of pounds, shillings and pence, alleged by

him to be due to the cos liquidation account, in accordance with his
applicon to the Board of Trade, of which the parlars are thereto
annexed.

Dated this day of , 19 — .

. . A. B.,

Assistant-Secretary, Board of Trade.

[^Thisform must in all cases be filed up and returned to the Inspector-
General in Bankruptcy, I, Hor^e Guards 4v^i^y Whitehall^ London^
S.W,, with Form C, (No. 1).]



329



Enfokoino Payment in.

As to the Courts to which appHoations are to be made for enforcing payment of
moneys into the companies liquidation account, under sect. 15 (4) of 1890, auprdf see
B. 177 of 1903, titpraf and the observations at p. 321. And see form of order in
Camp Floyd, ^. Co., Wright, J., Jan. 11, 1899.

The provisions of and incorporated by sect. 15 (4) apply whether the winding-up
is compulsory, voluntary, or under Bupervision.

The Board of Trade cannot, apparently, itself make an order for payment in of
moneys under sect. 15.

An application must be made to the proper Court by motion on notice to the
liquidator (Rr. 5, 6 and 177 of 1903), supported by an affidavit of the Registrar
of Joint Stock Companies verifying the liquidator's statement, and an affidavit
of Uie Inspector-General with reference to the particulars of the payments to be
made.

It seems to be settled now that no formal application is necessary for leave to set
the niiatter down. The necessary forms have been drafted for the Board of Trade
by competent hands.



Payment out of Undistributed Funds.

Cos (Winding-up) Act, 1890, s. 15.

Applioon for Payable Order.

Undistributed Funds.

In the matter of [insert full name of coy] the Coy, Limtd.

[State whether wound up voluntarily, or by order of the Ct^ or under the
supervision of the Ct,]

I, , of , the liqr of the above coy, make oath and say : —

That, as liqr of the above coy, I did, on the — day of , 19 — ,



Form 238.

Liquidator's
application
for payable
order (nndis-
tributed
fnnds).
Form 17a.



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830 WINDING-UP BY THE OOUET. [ChAP. XXIV.

pay to the credit of the cos liquidation aocomit the sum of £

sterling, as undistributed funds in the above matter :

That there is now payable to the persons specified in
the schedule hto annexed, in respect of the claims, and
in accordance wit^ the resolutions or other legal autho-
rizations severally specified in the sd schedule sums
amounting in all to £ „ „

That there are funds in the hands or under the control
of the liqr, apart from the moneys pd into the cos liqui-
dation account, and available for payment of the above
amount, amounting to £ ,, ,,

And that the balance required to be met out of funds
at the credit of the coy with the cos liquidation ac-
coimt is £ „ „

That I request the Board of Trade to issue payable order or
orders on the cos liquidation account for the above last-mentd amount
in respect of the sums above claimed, and in favour of the several
persons specified in the schedule, and to forward the same to me
at .

l_The schedule contains Jive columns, of which (1) is blank. The
other columns are headed resply — (2) ''Name and Address of Person
to whom Money is due." (3) '* Nature of Claim. (Whether in res|)ect
of Costs, Bemimeration, Dividends, Betums to Shareholders, Com-
position, Instalment, or otherwise.) (Claims by Creditors and by
Contributories should be distinguished.) " (4) '' Amount of Claim."
(5) '' How Authorized. (Whether in pursuance of a resolution of the
Coy, or of the Creditors, or allowed by the Ct or Taxing Officer.) "

\^At the foot of the cash column are the words : *' Total amount, £ ."

Below the schedule are the words following : — In the margin: "This
afft should be made before a magistrate, justice of the peace, or com-
missioner appointed to administer oaths," and opposite this the usual

jurat, "Sworn, &c.," and the words, "Signature of Liqr, ."

Below are the words :]

Notes. — (1.) In windings-up by the Ct the counter-signature of the
Master is required. See B. 174 (5).

(2.) Claims in respect of remuneration and costs should be accom-
panied by evidence that they have been allowed by resolution of the
coy, by the Ct, or by the taxing officer, as the case may be.

Ex , 19—. No. of E. 0. .

See Land Mortgage Bank of Florida, (1898) 1 Oh. 444, 449.

The above Ih the form directed by the Boaid of Trade by B. 179 of 1903, supra.
The Board thereupon directs cheques to be issued to the liquidator for transmissioa
to the persons to whom the payments are to be made.

See also B. 172 (5) of 1903. In that rule the word <' master" does not mean
<< registrar '' in proceedings in the High Court, the reason being that this rule only



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PROCEDURE UNDER S. 16 OP 1890. 331

appUes in ilie base of official liquidaiors, i.^., in oasee in which the winding-up order
was made before Ist January, 1891.

But the liquidator is not the only person who may apply for payment out.

Sect. 15 (5) of 1890, and H. 178 of 1903, enable creditors and oontributories,
with the oertifioate of the liquidator, to make application for payment out, as in
the two forms following.



Cos (Winding-up) Act, 1890, s. 15.



Form 239.



Applicon for Payable Order. b^?JSi^

Unclaimed Dividends. ^flTS of

In the matter of . }?^h/'f\

1,5 hquidator's

I, of , make oath and say : — o^idficate.

That I [ifafft is made on behalf of afirm^ insert the words, " partner Form 0.,
of the firm of A. B., and that the sd A. B."] have duly proved my ^^'

debt as a creditor in the above matter for pounds, shillings

and pence sterling ; and that the scune has been admitted by the .

liqr, and that [*'I am" or **they are"] entld in respt thof to a
[here state whether first, second, or other dividend, composition, instal-
ment, Sfc, which is claimed'], amounting to pounds, shillings

and pence sterling.

That the reason of [" my " or " their "] not having htofore applied
for payment of the same is that .

That I request the Board of Trade to issue to , the liqr, a pay-
able order on the cos liquidation account for the same in [''my" or
" their "] favour.

(Signature) .

Sworn at , this day of , 19 — .

Before me .

[In the margin of the form, opposite the jurat, are the following notes : — ]

'' This afft should be made before a magistrate, justice of the peace,
or commissioner appointed to administer oaths, or before such persons
as are mentd in sect. 128 of the Cos Act, 1862 {printed at back of this
form),

^* After the a£Pt has been sworn, this form should be sent to the liqr
for completion."

I, , of , liqr of the above coy, certify that the above claim

was duly proved by the above-named on the day of ,

189 — , and admitted by me, and that the sd -^ — is entld out of

moneys pd in by me on the , 189 — , to the credit of the Cos

liquidation Account with the Bank of England, to payment of the



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832 WINDING-UP BY THE CX)UBT. [ChAP. XXIV.

above-mentd amount of pounds, shillings and — pence

sterling* (£ s. d.)

Dated at this day of , 19 — .

(Signature) ,

liqr.

* If the creditor holds bills, the liquidator must add to the above certificate the

words "on production of bills for /. as per particulars endorsed hereon/* and

state the particulars on the back thereof.

The Inspector-General in Companies Liquidation,
Board of Trade,
1, Horse Guards Avenue, Whitehall, London, S.W.

Exd .

Number of receivable order .



Form 240. [^Title and commencement as in lastform,'] .

Ditto by That I {^partner ^ Sfc, see last form'] have been placed on the list of

TOu u ly. ^jQjjj^ri^utories in the above matter for shares representing /.,

No. 10a.' and that as the holder of such shares I am entld to a dividend amount-
ing to L out of the surplus assets of the coy.

That the reason, &c. That I request, &o. \as in lastform].

I, , of , liqr in the above matter, certify that the above

claim has been duly admitted by me, and that the sd is entld,

&c. [continue as in lastform].

The Inspector-General in Companies Liquidation,
Board of Trade,
1, Horse Guards Avenue, Whitehall, London, S.W.

Exd .

Number of receivable order .

In the margin of the form, opposite the jurat, are Uie two notes mentioned at
foot of last form.



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333



CHAPTER XXV.

BANKING ACCOUNT AND INVESTMENT.



Banking Account.

Seot. 11 of 1890. — (1) An accoant, called the Companies Liquidation Account, Companies
shall be kept bj the Board of Trade with the Bank of England, and all moneys Liquidation
reoeived hj the Board of Trade in respect of proceedings under this Act shall be Account,
paid to that account.

(2) Every liquidator of a company which is being wound up by order of the Court Payment in
shall, in such manner and at such times as the Board of Trade, with the concurrence ^7 liquidator,
of the Treasury, direct, pay the money received by him to the Companies Liquida-
tion Aocount at the Bank of England, and the Board of Trade shall furnish him

with a certificate of receipt of the money so paid.

(3) Provided that, if the committee of inspection satisfy the Board of Trade that Special bank
for the purpose of carrying on the business of the company or of obtaining advances, account.

or for any other reason, it is for the advantage of the creditors or contributoriee
that the liquidator should have an account with any other bank, the Board of
Trade shall, on the application of the committee of inspection, authorize the liqui-
dator to make his payments into and out of such other bank as the committee may
select, and thereupon those payments shall be made in the prescribed manner.

(4) If any such liquidator at any time retains for more than ten days a sum Undue deten«
exceeding fifty pounds, or such other amoxmt as the Board of Trade in any par- ^on of money,
ticular case authorize him to retain, then, unless he explains the retention to the
satisfaction of the Board of Trade, he shall pay interest on the amount so retained

in excess at the rate of twenty pounds per centum per annum, and shall be liable to
disallowance of all or such part of his remuneration as to the Board shall seem just,
and to be removed from his office by the Board, and shall be liable to pay any
expenses occasioned by reason of his default.

(5) All payments out of moneys standing to the credit of the Board of Trade m Payments out.
the Companies Liquidation Account shall be made by the Bank of England in the
prescribed manner.

(6) No liquidator of a company which is being wound up by order of the Court Payments to
shall pay any sums received by him as liquidator into his private banking account, private ac-
[Thie section is taken with variations from s. 74 of the Bankruptcy Act, 1883, under ????* *®''
which it has been held that the Court can commit for non-payment of interest. ^'^'

Se NiehoUon, 68 L. T. 322.]

K. 147 of 1908. — ^All payments out of the Companies Liquidation Account shall
be made in such manner as the Board of Trade may from time to time direct.
[Formerly B. 80 of 1890, taken from Bkcy. B. 311.]

B. 148 of 1908.— (1) Where the liquidator in a winding-up by the Court is How special
authorized to have a special bank account he shall forthwiUi pay all moneys aocount kept,
received by him into that account to the credit of the liquidator of the company.
All payments out shall be made by cheque payable to order, and every cheque shall ■



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334



WINDING-UP BY THE COUKT. [ChAP. XXV.



have marked or written on the face of it the name of the company, and Bhall be
signed by the liquidator, and shall be conntersigfned by at least one ^member of
the committee of inspection, and by such other person, if any, as the conmiittee of
inspection may appoint. [Formerly R. 81 of 1890, taken from Bkcy. R. 340.]

(2) Where application is made to the Board of Trade to anthorize the liquidator in
a winding-up by the C!ourt to malce his payments into and out of a special bank
account the Board of Trade may grant such authorization for such time and on such
terms as they may think fit, and may at any time order the account to be closed if
they are of opiniota that the account is no longer required for the purposes men-
tioned in the application. [Formerly R. 82 of 1890.]



Special
acooont.



How com-
panies liqui-
dation ac-
count kept.



Soiohargie.



Companies Liquidation Account.

Although sect. 11 (6) of 1890 (supra) forbids a liquidator to pay money into his
private banking account, he is not expected, in the intervals between making pay-
ments into the Companies Liquidation Account, to carry the money about with him
in his pocket or leave it in his desk.

In practice the liquidator submits the name of some bank to the Board of Trade
for their approval, and into this, if approved, pays money received by him tram
time to time to the credit of his separate aocount as liquidator of the paitloDlar
- company. He musl not, however, draw cheques on this account for payments to
creditors or others in the liquidation, but only for the purpose of paying the money
into the Companies Liquidation Account at the Bank of England, in pursuance of
the directions of the Board of Trade.

Once a week, or forthwith if a sum of 200/. has been received, the liquidator
must (where there is no special bank account) pay all the money received by him
(including what he has paid into the above-mentioned bank), without deduction,
into the Companies Liquidation Account at the Bank of England. A separate
account is not kept by the liquidator with the Bank of England, but an account is
'* kept by the Board of Trade of the receipts and payments in the winding-up of
each company" (see sect. 17 (1) of 1890, infra) j and the Inspector-General's
certificate of the balance standing to the company's credit will be given on the
application of the liquidator. To be in a position to make his payments regfularly
the liquidator must apply to the Inspector- General in Companies Liquidaticni
(1, Horse Guards Avenue, S.W.) for a supply of the necessary forms. These will
include forms of the ** Receivable Order," which is known as Form C; No. 7.
This form must be filled up with particulars of the amounts of the cheques, and
notes and gfold (if any), and the other particulars pointed out by the form, and
must be sent, with the cheques, &o., to the Bank of England, Law Courts Branch,
London. (See Regulations 1, 2, of January, 1898, Appendix B. ; and Form 242,
infra.)

Half -pence should not be included in the remittances, and such remittanoes may
be made direct to the above-named bank crossed *'Bank of England, credit of
Companies Liquidation Account." (Reg. 1.) By the same post the counterpart
or advice letter (Form 243), which is annexed to the receivable order, must be sent,
duly filled up, to the Assistant Secretary, Finance Department, Board of Trade.

As to the x>enalties to which the liquidator subjects himself by keeping money for
over ten days, see sect. 11 (4) of 1890, supra.

Where the liquidator neglects or refuses to pay money into the Companies
Liquidation Account, the Board of Trade can surcharge him with interest under
sect. 11 (4). It has also power to audit his accounts (see Chap. XXIV.). The
smmharge or result of audit having been certified, application may be made to the



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BANKING ACCOUNT AND INVESTMENT.



335



Court by^saminoiiB for an order on the liquidator to pay in the amoxuit soroliarged,
or in hifi hands.

Ko genex^ form of authority, under sect. 11 (4) of 1890, to retain more than 60/.,
has, it is belieyed, been yet issued by the Board of Trade.

All current bills of exchange must also be sent ,to the Companies Liquidation Bills of
Account (Reg. 3 of January, 1893, Appendix ; and compare sect. 104 of 1862). exchange.

But, although a liquidator must pap money into the Companies Liquidation
Account, he cannot draw cheques on that account.

He has to make many disbursements in the first place out of his own pocket, and Payments out
to- obtain repayment he must fill up and send to the Lispector- General what is ^f companies
known as Form C, No. 6 (m/ra. Form 244). aSSl^t!^

Payment is made to the liquidator by cheque or money-order out of the moneys
standing to the credit of the company in the Companies Liquidation Account
(Keg. 5 of January, 1893).

If cheques are required by the liquidator, he must fill up and send to the Lispeotor- Cheques.
(General Form C, No. 6 (Form 245, infra).

At the foot of the Form C, Nos. 6 and 6, is a note stating in more detail what is
provided by Reg. 7 of January, 1893, yiz., that ** under no droumstances will the
Board of Trade hold themselyes responsible for payments made on the requisition
of the liquidator."

As to obtaining the Iiispector-Q^neral's certificate of the balance standing to the
company's credit, see Reg. 8 of January, 1893 (Appendix B.).

As to how moneys drawn from the bank are to be entered in the cash book, see
Chap. XXIV.

As to applications for the cancellation of cheques, &c., see Reg. 10 of January,
1893 (Appendix B.).

Board of Trade, Bankruptcy Department, Form 241.

1, Horse Ghiards Avenue, London, 8.W. ^w- ^' r~

' ' ' Directions to

19 — . liquidator as

to paying into
It is requested that in any reply to this letter, and companies

in all applications for cheques and advices of remit- liquidation

tances to Companies Liquidation Account, the follow- account,

ing number may be quoted : —

No. L/F. .

Re The Coy, Limtd, Ct . No. 19—.

Sir, — I have to inform you that the sum of pounds, shillings

and pence (£ — : ) is standing at the credit of the cos

liquidation account, and is held at your die^posal as liqr in the above
matter.

I am also to enclose forms lor your use when remitting money to
the Bank of England and for advising the Board of Trade thof . A
further supply of these forms will be transmitted to you on the receipt
of an appHeon.

I am, Sir, your obedient servant,

John Smith,
To . Inspector-Q^neral in Oos liquidation.



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336



Form 242.

Beceivable
order and
oertifioate of
payment.
Form C,
No. 7.



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

[7b he enclosed with remittance to the Bank of England,"]

Cos (Winding-up) Act, 1890. C. No. 7.

Receivable Order.

Sir, — Mr. , liqr at , is authorized to pay to the credit of the

cos liquidation account the sum of pounds, shillings and

pence, the particulars of which are stated below, and I am to

request you to receive the same accordingly.

I am, Sir, your obedient servant,



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 45 of 152)