Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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petition do stand over until the first petition day after the sd meeting
has been held. Oeneral Phosphate Corporation, 0096 of 1893, Yaughan
Williams, J., 18 May, 1893.

In Thwnoi Edward Brintmead and Sons (Vanghan Williams, J., Nov. 1896) no
order was drawn up, but a memorandum was signed. See Form 394b.



Upon the appHcon of S., the off recr and prov liqr of the above- Form 393.
named bank, by summons dated, &c., and upon hearing counsel for ^^wfor
the applicant and for the above-named bank, and reading the order proTisional
dated, &c. (appointing prov liqr), the affts, &c.. It is ordered that cKS^«
separate meetings of the creditors and contributories of the above- astoproteot-
named bank be held for the purpose of ascertaining their wishes as to ^^^!^^^^
the mode of protecting their several interests, and that such meetings &o.

resply be held at , on , the day of , 1892, and that

notices convening such meetings resply be advertised in The Times
and The Standard newspapers, and in addition to such advertisements
a circular letter containing a notice of such meeting be sent to all the
contributories of the above-named bank whose names are on the
London register, and also to all the creditors of the above-named
bank whose names and addresses are known to the applicant. And it
is ordered that the applicant, as off recr and prov liqr, do preside at
such meeting, and report the result thof to the Ct. And it is ordered
that the costs of the applicant and of th^ above-named bank of the sd
applicon and consequent thereon be costs in this matter. Mercantile
Bank of Australia, 089 of 1892, Yaughan Williams, J., 3rd June,
1892.



Upon Ihe applicon of the off liqrs of the above-named coy, and Form 394.
upon hearing the solors for the applicant, It is ordered that the qm^I
applicants do summon a meeting of the shareholders whose names Uauidatorto
appear on the share register of the sd coy for the purpose of f~j^f)^
ascertaining the wishes of the sd shareholders as to the acceptance holders as to
or otherwise of certain terms of settlement of the action now pending settlement of
in this honourable Ct between the X. Coy and the sd coy, entld " The
X. Coy r. The N. Coy, Limtd. 1889. B. 3608 "—such terms being
the payment, &c. And it is ordered that the sd meeting be held in
London on, &c.| or such subsequent date as the applicants may
determine upon. And that notice to the sd shareholders of such
meeting shall be given seven dear days before the date thof. And
hat W., of, ^.> one of the sd off liqrs, do act as chairman of the sd



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432



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

meetmg, and report the result thof to Mr. Justice Stirling. And that
the votes of the shareholders at such meeting may be given either
personally or by proxy. Nottingham and Derhy Water Oas Oo,^
Stirling, J., 14th April, 1892.



Form 894a. In the matter, &c., 7th of June, 1893.

Memoniidiim memorandum,

as to meetiiig.

Mr. Justice Yaughan Williams has directed a meeting of the

shareholders of the above-named corporation to be summoned by

the secretary of the sd corporation, pursuant to the above statutes,

for the purpose of ascertaining their wishes as to the pending petition

for the winding-up of the above-named corporation, And that such

meeting shall be held on, &c., at o'clock in the afternoon, at, &c.

The judge has appointed to act as chairman at such meeting.

General Phosphate Corporation, 0096 of 1893.



Form 384b. Memorandum.

Another. {Full title and reference to record,)

Mr. Justice has directed a meeting of shareholders of the

above-named coy to be summoned pursuant to the above statutes, for
the purpose of ascertaining the wishes of the shareholders as to
whether the coy shall continue to carry on business, or whether the
coy shall be wound up by the Ct under the provisions of the above-
mentd Acts in accordance with the prayer to the peton presented in
this matter.

Notice of the sd meeting is to be sent by post, at least seven dear
days before the day appointed for the meeting, to each of the share-
holders of the coy, at the addresses of such shareholders resply
appearing in the books of the sd coy.

The judge has directed one of the off recrs attached to the Ct to act
as chairman of the sd meeting, and he is to report the result of the sd
meeting to the Ct, and in such report the votes of the shareholders
who repudiate their shares are to be distinguished from those who do
not repudiate, and the amount of the holdings of the several share-
holders voting at the meeting is to be stated.

And the further hearing of the sd peton is adjourned to the 25th
Nov. 1896.

H. J. Soon,
Registrar Cos ( Winding-up)* .

Thomas ^teafd BrinsiMod and Sons (00200 of 1896), 6th Nov. 1896.



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GENERAL MEETINGS OP CREDITORS AND CONTRIBUTORIES. 433

In tlie matter, &g. Form 395.

Notice is hereby giTen, that Mr. Justice has directed a meeting Notice oon-

of the creditors [or contributories] of the above-named coy to be S^Sected
summoned pursuant to the above statutes for the purpose of ascertain- ^7 the Court,
ing their wishes as to [state the object for which meeting called^ unless
notice is by advertisement^ in which case say, certain matters relating to
the winding-up of the sd coy], and that such meeting will be held

on day, the day of , 19—, at o'clock in the

noon, at , in the county of , at which time and place all the

creditors [or contributories] of the sd coy are requested to attend.
[The sd judge has appointed H. T., of, &c., to act as chairman of such
meeting.]

Dated this day of , 19—. E. P. H., Liqr.

The above form is on the lines of Form 45 in the now annulled schedole to the
Roles of November, 1862, and may be adopted where the Court directs a meeting.



{Full title and reference to record.) Vcirm 39Sa.

Notice is hereby given that Mr. Justice (the judge before Another.

whom the peton presented by B. to wind-up the above-named coy is
now pending) has directed a meeting of the shareholders of the above-
named coy to be summoned, pursuant to the above statutes, for the
purpose of ascertaining the wishes of the shareholders as to whether
the coy shall continue to carry on business, or whether the coy shall
be wound up by the Ot under the provisions of the above-mentd Acts,
in accordance with the prayer of the sd peton, and that such meeting
will be held on Monday, the 23rd day of Nov. 1896, at half -past two
o'clock in the afternoon, at the Inns of Court Hotel, Lincoln's Inn
Fields, London, W.C.

The sd judge has directed one of the off recrs attached to the Gt to
act as chairman of the sd meeting.

Dated 13th day of Nov. 1896.

H. J. Hood,
Eegistrar Cos Winding-up, Bankruptcy Buildings,
Carey Street, London, W.C.

Note. — By the direction of the judge the attention of shareholders
who repudiate their shares is called to the fact that it is possible that
it may be held that by attending the meeting, or by attending the
meeting and voting thereat, such shareholders have elected to accept
the position of shareholders of the coy, and therefore forfeited their
right to repudiate their shares. Shareholders may attend and vote at
the sd meeting either personally or by proxy. A form of proxy accom-

P. F F



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434 WINDING-UP BY THE COURT. [ChAP. XXXVI.

panies this notice. The judge has expressed his desire that no circulars
should be sent to shareholders. Thomas Edicard Brinsmead and Sons
(00200 of 1896).

This h the notice giyen of the meeting referred to in Form 394b. The meeting
resolTed that it was desirable to go on, but tho learned judge made a winding-up
order, and the Court of Appeal affirmed the decision. There were a number of
shareholders who had repudiated their shares on the gpround of misrepresentation,
and had taken proceedings to enforce such repudiation. Haying thus definitiyelj
elected to avoid their contracts, they could have voted without danger, for *' if a
man once determines his election it shall be determined for ever*' (Com. Dig. Elec-
tions, c. 2), so held hy Court of Appeal in Foulkca v. QuarU HiU Co,y in 1884 (Elm.
Dig. 1884, p. 102), and see further Part I. of this work, 8th ed. p. 163. To vote at
a meeting of the company after knowledge of a right to repudiate and before writ
issued operates as an affirmance of the contract. SharpUy v. Louth, ^c, Co., 2 C. D.
663.

In Tomlin^a ease, (1898) 1 Ch. 104, Wright, J., doubted if the rule as to election
was as absolute as above, but it clearly is. Co. Litt. 146a ; CUugh v. L, ^ N, W. Ry.,
L. B. 7 Ex. 26 ; Scarf y, Jardine, 7 App. Cas. 346, 360.



Form 396.

Notice of
meeting



(gen®
fa



form).
Form 75 of
1903.



{TiiU.)

Take notice, that a meeting of creditors [or contribatories] in the

above matter will be held at on the day of , 19 — , at

o'dock in the ^noon.



Agenda.

[Here insert purpose for tohioh meeting called."]

Dated this ^— day of , 19 — .

(Signed) , ["liqr " or "Off recr."]

Forms of general and special proxies are inclosed herewith. Proxies

to be used at the meeting must be lodged not later than o'clock

on the day of , 19 — .

For general and special proxy, see Forms 168, 169, and Chap. XVIL And see
note to Form 402, also Form 402a.



Form 397.

Kotlce of
general
meeting of
creditors (on
requisition).



(7%fo.)

Notice is hby given that in pursuance of a requisition by creditors
representing one- tenth in value of the unsecured creditors of the coy,
a meeting of the creditors in the above matters will be held at No. 33,
Carey Street, Lincoln's Inn, W.C., on Thursday, the 9th day of June,
1892, at 12 o'clock noon.



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GENERAL MEETINGS OF CKEDITOES AND CONTRIBUTORIES. 435



Agenda.

(a) To consider the propriety of acoeptmg an offer of 10*. in the £
upon the respive debts of the creditors, together with payment of all
costs, charges, and expenses incident to the liquidation.

(b) To M a vacancy in the office of a member of the committee of
inspection.

Dated the 27th day of May, 1892.

C. J. S., Off Eecr and liqr.

Forms of general and special proxy are inclosed herein. Proxies to
be used at the meeting must be lodged not later than 12 o'clock on
the 8th June, 1892. Broad's Patent Night Light Co.

3e6 Mot. 23 (2) of 1890, ntpra. And see note to Form 402.



{TitU.) Form



I, , the off recr of , do hby nominate Mr. , of , '^^^^^^^

to be chairman of the first meeting of creditors [or contributories] in aschSrman

the above matter, appointed to be held at , on the day of o^ meeting

, 19 — , and I depute him [here insert ^ "being a person in my proxies.

employment or under my official control, or being an officer of the Form 79 of
Board of Trade "] to attend such meeting and use, on my behalf any ^^^^'
proxy or proxies held by me in this matter.

Dated this day of , 19—.

Off Eecr.



{Title.) Form 899.



I, , a [state the description of the deponent\ make oath and say Affidavit of

asfoUows:— postage of

noucee of

1. That I did on the day of , 19 — , send to each creditor meeting.

mentd in the coy's statement of affairs [or to each contributory mentd Form 76 of
in the register of members of the coy] a notice of the time and the
place of the [insert here ** general" or ** adjourned general," or ** first"
meeting of creditors or contributories, as the case may he~\ in the form
hereunto annexed marked *' A."

2. That the notices for creditors were addressed to the sd creditors
resply, according to their respive names and addresses appearing in
the statement of affairs of the coy.

3. That the notices for contributories were addressed to the con-
tributories resply according to their respive names and addresses
appealing in the register of the coy.

F F 2



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436



WINDING-UP BY THE COUBT. [ChAP. XXXVI.



Form 400.

Certificate of
postage of
notices
(general).
Form 77 of
1903.



4. That I sent the sd notices by putting the same prepaid into the
, before the hour of



post office at , before the hour of o'clock in the noon on

the sd day.
Sworn, &c.

(Title.)

I, , a clerk in the office of the off rear, hby certify : —

1. That I did on the day of , 19 — , send to each creditor

mentd in the statement of affairs, or each contributory mentd in the
register of members of the coy [^or as the case may Je], a notice of
the time and the place of the first meeting [or ''a general meeting, "
or '' adjourned general meeting," ae the case may he'] in the form here-
unto annexed marked " A."

Paragraphs 2, 3, and 4, as in [last form"].

(Signature) .

Dated .

See B. 124 of 1903, rnpra.



Form 401.

Memorandam
of adjoam-
ment of first
or other
meeting.

Form 78 of
1903.



{Title.)
the day of



19—, at



Before , at , on

o'clock.

Memdum. — The first [or as the case may he"] meeting of [insert
"creditors" or ** contributories," as the case may be"] in the above
matter was held at the time and place above-mentd ; but it appearing
that [here state reason for adjournment'] the meeting was adjourned

until the day of , 19 — , at o'clock in the noon, then

to be held at the same place.

. Chairman.



Form 402.

Proxy at

general

meeting.



{Tith.)
I, "W. S., of , in the county of , being a creditor [or con-
tributory] of the above-named coy, hby appoint , of , as

my proxy to vote for me, and on my behalf, at the meeting of the
creditors [or contributories] of the sd coy, summoned by direction of

Mr. Justice , to be held on the day of — , and at any

adjournment thereof.

As witness my hand this — day of , 19 — .

W. S.
Signed by the sd W. S. \
in the presence of )

J. M., of, &c.

Rule 127 of 1903 recognizes the right to vote by proxy. See also, as to proxies,
Rr. 132—134 of 1903 [nupray p. 429). It is to be observed that the rales set ont in
the first schedule to the Act of 1890 only apply to the^r«^ meetings of creditors and
contributories, and there is nothing to preveut the appointment of any person as
special or general proxy at subsequent meetings.

The name of the ofiloial receiver ought not to be inserted as proxy.



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GENERAL MEETINGS OF CREDITORS AND CONTRIBUTORIES.



437



{Full title and reference to record.)



toTTSL 408a.



I, the imdendgned, a sliareliolder of the abore-named ooy, liby AnotliCT\
appoint [insert name, address, and description 0/ proxy proposed. Such Se ^urt ^

proxy must he a shareholder of the coy], of , in the county of ,

as my proxy, to act for me at the meeting of ehareholders to be held
at the Inns of Court Hotel, Lincoln's Inn Fields, London, W.O., on
Monday, the 23rd day of Not. 1896, at half -past two o'clock in the
afternoon, for the purpose of ascertaining the wishes of the share-
holders as to whether the coy shall continue to cany on business,
or whether the coy shall be wound up by the Ct under the provisions
of the aboTe-mentd Acts, and at such meeting, and any adjournment
thof, to vote for me and in my name \insert here either ** in favour of
carrying on the business of the coy,^^ or, ** in favour of a winding-up by the
Ct,^' or, *^ in favour either of continuing the sd business or of a winding^
up, as my proxy may approve "].

Dated this day of Nov., 1896.

Signature (Stamp.)

Address

Description

Holder of [insert how many"] shares in the above coy.

NoTB. — ^This proxy must be lodged at the office of the off recr,
33, Carey Street, Lincoln's Inn, London, not later than the day before
the meetiug at which it is to be used.

Any alteration made in the form of this proxy must be initialled.

NoTB. — ^The above is the form of proxy paper iBsaed by direction of the Court in
Thomat Edward BritwMod ^ Co, See Forms 394b and 396a, tupra. The portion in
italiofl took the form of marginal notes in the original form.



{Title.)

Meeting of creditors [or contributories] held at •
of , 19—,



Form 403.

', this — day List of

creditors or
ooDtributories
amembled, to
be used at
every meet-
ing.

Form 25 of
1903.



Kaxnber.


Names of Creditors [or Contributories] present or
represented.


Amoimt of Proof
[or Number of Shares],


1.
2.

\:

5.
6.
7.


Total number of creditors [or contributories]
present or represented.




7





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438



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



Form 404,

Report of
result of
meeting of
creditors or
oontribu-
tories.
Form 27 of
1903.



(Title.)

I, A. B., the liqr of the above-named coy, chairmaE of a meeting of
the creditors [^or contributories] of the above-named coy, summoned by

advertisement l_or notice], dated the day of , and held on the

day of , at , in the county of , do hby report to the

Ct the result of such meeting as follows : —

The sd meeting was attended, either personally or by proxy, by

creditors, whose proofs of debt against the sd ooy were admitted for

voting purposes, amounting in the whole to the value of /. [or by

contributories, holding in the whole shares in the sd coy,

and entld resply by the regulations of the coy to the number of votes
hnftr mentd].

The question submitted to the sd meeting was, whether the creditors
[or contributories] of the sd coy wished that [here state proposal sub-
mitted to the meeting^.

The sd meeting was of opinion that the sd proposal should [or
should not] be adopted [or the result of the voting upon such question
was as follows :]

The under-mentd creditors [or contributories] voted in favour of the
sd proposal being adopted : —



Name of Creditor
[or Oontxibutory].



Addrees.



Value of Debt
[or Number of Shares].



Number of Votes ooof eired on

each Contributory by the
BegulationB of the Company.



The under-mentd creditors [or contributories] voted against the sd
proposal being adopted : —



Naine of Creditor
[or Contributory].



Address.



Value of Debt
[or Number of Shares].



Number of Votes conf acred on

each Contributory by the
Itegulata<nifl of the Company.



Dated this day of , 19 — .



(Signed)



H. r.,

Chairman.



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439



OHAPTEE XXXVn.

CREDITORS.



What Debts provable.

Sect. IM of 1862. — ^In the event of anj company being wound np nnder this Act, Solrent
all debts payable on a contingenoyi and all claims against the company, present or companies,
f atore, certain or contingent, ascertained or sounding only in damages, shall be
admissible to proof against the company ; a jnst estimate being made, so far as is
posfdble, of the valoe of all sach debts or claims as may be subject to any contin-
gency or sound only in damages, or for some other reason do not bear a certain
value.

The right of proof conferred by the above section is now limited to the case of
solvent companies ; for, as regards insolvent companies, sect. 10 of the Judicature
Act, 1875, declares what debts and liabilities are to be provable.

That section is as follows : —

Jud. Aet, 1878, f . 10.— In the administration by the Court of the assets of any
"penon who may die after the commencement of this Act, and whose estate may
prove to be insufficient for the payment in full of his debts and liabilities, and in
the windittff-up of any company under the Companies Acts, 1862 and 1867, whose assets
may prove to be insufficient for the payment of its debts and liabilities, and the costs of
winding-up, the same rules shall prevail and be observed as to the respective rights of
secttred and unsecured creditors, and as to debts and liabilities provable, and as to the
valuation of annuities, and future and contingent liabilities respectively, as may be in
force for the time being under the law of banzruptct with respect to the estates of Application
X>eT8ons adjudged bankrupt, and all persons who in any such case would be entitled of bank-
to prove for and receive dividends out of the estate of any such deceased person, or "*P*^ "^^*
out of the assets of any such company, may come in under the decree or order for
the administration of such estate, or under the winding-up of such company, and
make such claims against the same as they may respectively be entitled to by virtue
of this Act.

IVimd facie, a company in winding-up is to be taken to come within the section.
Those who allege the contrary must show that its assets are sufficient to pay ** its
debts and liabilities and the costs of winding-up." Milan Tramways, 25 C. D.
587 ; and see He Leng, (1895) 1 Ch. 652. The words of the section "as to the
debts and liabilities provable" mean " as to what debts and liabilities can be
proved, and the manner in which they are to be proved." Naylor v. Mersey Steel f
Iron Co., 9 Q. B. D. 648 ; affirmed 9 App. Cas. 434, sub nom. Mersey Steel ^ Iron
Co. V. Naylor.

The section, it is to be noted, makes the Bankruptcy Rules " in force for the time
being " applicable, and accordingly altered Bankruptcy Rules automatically apply.

The debts and liabilities provable in bankruptcy are specified in sect. 37 of the BAincsuFTCfY
Bankruptcy Act, 1883, which is as follows :— Rules.

Bankruptcy Act, 1883, i. 37.— (1) Demands in the nature of unliquidated Unliquidated
damages arising otherwise than by reason of a contract, promise, or breach of damages,
trust, shall not be provable in bankruptcy.



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440



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



Debt after
notice of aot
of bank-
ruptcj.

Other debts,
&c. proTable.

Estimate as
to oontingent
debts, &c.

Appeal.



Assessment
of yalue.



Meaning of
"liabiUty."



(2) A person having notice of any act of bankruptcy, available against the
debtor, shall not prove under the order for any debt or liability contracted by the
debtor subsequently to the date of his so having notice.

(3) Save as aforesaid, all debts and liabilities, present or future, certain or con-
tingent, to which the debtor is subject at the date of the receiving order, or to
which he may become subject before his discharge by reason of any obligation
incurred before the date of the receiving order, shall be deemed to be debts provable
in bankruptcy.

(4) An estimate shall be made by the trustee of the value of any debt or liability,
provable as aforesaid, which by reason of its being subject to any contingeooy or
contingencies, or for any other reason, does not bear a certain value.

(6) Any person aggrieved by any estimate made by the trustee as aforesaid may
appeal to the Court.

(6) If in the opinion of the Court the value of the debt or liability is incapable
of being fairly estimated, the Court may make an order to that effect, and there-
upon the debt or liability shall, for the purposes of this Act, be deemed to be a debt
not provable in bankruptcy.

(7) If in the opinion of the Court the value of the debt or liability is capable of
being fairly estimated, the Court may direct the value to be assessed before the
Court itself without the intervention of a jury, and may g^ve all necessary directions
for this purpose, and the amount of the value when assessed shall be deesmed to be
a debt provable in bankruptcy.

(8) ** Liability" shall, for the purposes of tiiis Act, include any compensation
for work or labour done, any obligation or possibility of an obligation to pay money
or money's worth on the breach of any express or implied covenant, contract,
agreement, or undertaking, whether the breach does or does not occur, or is or is
not likely to occur or capable of ocourriug before the discharge of the debtor ; and
generally it shall include any express or implied engagement, agreement, or under-
taking, to pay, or capable of resulting in the payment of money or money's worth,
whether the payment is as respects amount fixed or unliquidated ; as respects time,
present or future, certain, or dependent on any one contingency, or on two or more
contingfencies ; as to mode of valuation, capable of being ascertained by fixed roles,
or as matter of opinion.

[See further as to this section, Williams on Bkcy.]



Proofs.

How Made.
Rr. 91—106 of 1908 are as follows, and the Rules of 1890, for which they are
substituted, were taken mainly from Sched. II. to the Bkcy. Act, 1883 : —

Proof of debt. 91. In a windiog-up by the Court every creditor shall prove his debt. [For-
merly R. 96 of 1890, taken from Sched. II. r. 1.]

Affidavit of 92. A debt may be proved in any winding<up by delivering or sending through

proof. ^e pQgt an affidavit verifying the debt. In a winding-up by the Court the affidavit



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 57 of 152)