Charles Mac Naughten Sir Francis Beaufort Palmer.

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

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Settling the B. List.

Pastmembers. '^^ ^* ^^ oomprises the past members, viz., those who ceased to be members
within one jear from the commencement of the winding-np. See sects. 88 and 74
of 1862, and obserrations, supra.

Sect. 88 (8) of 1863 provides that no past member shall be liable to contribate to

the assets of the company nnless it appears to the Oonrt that the existing members

are unable to satisfy the contributions required to be made by them in puisoanoe

of this Act.

Court's leaye. And as the Act of 1890 does not substitute ''liquidator" for ''the Court," it appean

that an application to the Court is necessary before the B. List can be settled.
Evidenoe. According to the old practice, the Court, before proceeding to settle the B. Lkt^

required some evidence that there was an improbability of the requisite assets being
otherwise obtained within a reasonable time (Helbert v. Banner, L. B. 6 H. L. 28],
and this practice will no doubt be followed.

As to the mode of estimating the debts for which past members are liable, see
Morris' 9 case, 7 Ch. 200 ; 8 Ch. 800.

As to application of what is recovered from the past members, see WM t.
mijin, L.R. 6 n.Ij, 711.
CompromiBe. If the past members buy up the debts in respect of which th^ are liable to
contribute, they may escape. Brett's case, 6 Ch. 807 ; 8 Ch. 800.

A compromise with an A. contributory does not discharge the B. oontiibatofy
beyond the amount received. Helhert v. Banner, L. R. 6 H. L. 28.



Court may
make and
order pay-
ment of calls.'



G^eral rules.



Sanction
required.



Liquidator's
powers.



Committee
summoned.



Calls on Contributories.

An soon as may be after the winding-up order, the Court is to " cause the
of the company to be collected." See sect. 98 of 1862, supra.

Sect. 102 of 1868. — The Court may, at any time after making an order for
winding-up a company, and either before or after it has ascertained the sulBoieDOj
of the assets of the company, make caUs on and order payment thereof by all or any
of the contributories for the time being settled on the list of contributories, to the
extent of their liability, for payment of all or any sums it deems necessary to satisfy
the debts and liabilities of the company, and the costs, charges, and expenses of
winding it up, and for the adjustment of the rights of the contributories amongst
themselves, and it may, in making a call, take into consideration the probability
that some of the contributories upon whom the same is made may partly or wholly
fail to pay their respective portions of the same.

Sect. 13 of 1890.— General rules may be made for requiring or enabling all or
any of the powers and duties conferred and imposed on the Court by sect. 102
of the Companies Act, 1862, to be exercised or performed by the liquidator as an
officer of the Coort, and subject to the control of the Court. Provided that the
liquidator . . . shall not make any call without either the special leave of the
Court or the sanction of the committee of inspection.

Br. 8^—80 of 1908 are as follows :~

86. The powers and duties of the Court in relation to making calls upon con-
tributories conferred by sect. 102 of the Companies Act, 1862, shall and may be
exercised by the liquidator in a winding-up by the Court as an officer of the Court,
subject to the provisions of sect. 13 of the Companies (Winding-up) Act, 1890,
and to the following regulations : —

(1.) Where the liquidator desires to make any call on the contributories, or any



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CONTRIBUTORIES. 627

of them, for anj piupoee authorized by the Acts, if there is a oomtnittee
of iiiBpection he may sammon a meeting of such committee for the purpose
of obtaining their sanction to the intended call.

(2.) The notice of the meeting shall be sent to each member of the committee of Notice of
inspection in sufiBcient time to reach him not less than seven days before meeting,
the day appointed for holding the meeting, and shall contain a statement
of the proposed amount of the call, and the purpose for which it is
intended. Notice of the intended call and the intended meeting of the AdvertiBe-
committee of inspection shall also be advertised once at least in a London °^^^^'
newspaper, and where the winding-up is not in the High Court also in a
newspaper circulating in the district of the Court in which the pro-
ceedings are pending. The adyertisement shall state the time and place of
the intended meeting of the committee of inspection, and that each con-
tributory may either attend the said meeting and be heard, or make any
communication in writing to the liquidator or members of the committee
of inspection to be laid before the meeting, in reference to the said intended
call.

(3.) At the meeting of the committee of ini^>eotion any statements or repre- Statements to
sentationfi made either to the meeting personally or addressed in writing to ^ considered,
the liquidator or members of the committee by any contributory shall be
considered before the intended call is sanctioned.

(4.) The sanction of the committee shall be given by resolution which shall be Beeolution.
passed by a majority of the members present.

(6.) Where there is no committee of inspection the liquidator shall not make a Court's leave
call without obtaining the leave of the Court. [Formerly R. 92 of 1890.] where no

87. In a winding-up by the Court an application to the Court for leave to make any ^™™^
call on the contributories of a company, or any of them, for any purpose authorized | Cost's
by the Acts, shall be made by summons stating the proposed amount of such call, l^ye.
which summons shall be served four clear days at the least before the day appointed

for inaking the call on every contributory proi>osed to be included in such call ; or, if
the Court so directs, notice of such intended call may be g^ven by advertisement,
without a separate notice to each contributory. [Formerly R. 93 of 1890.]

88. When the liquidator is authorized by resolution or order to make a call on Document
the contributories, he shall file with the registrar a document in the Form 68, with making the
such variations as circumstances may require, making the call.

89. When a call has been made by the liquidator in a winding-up by the Court, Copy reeolu-
a copy of the resolution of the Committee of Inspection or order of the Court (if any, ^^^ or order
as the case may be) shall forthwith, after the call has been made, be served upon "^ notice,
each of the contributories included in such call, together with a notice from the
liquidator specifying the amount or balance due from such contributory in respect of

such call, but such resolution or order need not be advertised unless for any special
reason the Court so directs. [R. 94 of 1890, varied.]

90. The payment of the amount due from each contributory <m a call may be Enforcing
enforced by order of the Court to be made in Chambers on summons by the P^Jiiient.
liquidator.

The liquidator is not bound to put off making a call until the claims are esta-
blished. A call may be made before any uf the claims are established. Contract
(kn-poration, 2 Ch. 96 ; Bamed*i Banking Co,, 36 L. J. Ch. 216. Even under the
old practice, in making the call the judg^ relied on the liquidator's opinion.
Eelbert v. Banner, L. R. 6 H. L. 28.

But a call cannot be made until a list of contributories has been settled.

Where a contract provides that payment for shares shall be made by instalments, Lutahnent^.
some of which have not become due imder it when a winding-up order is made,



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528 WINDING-UP BY THE COURT. [ChAP. XXXVIII.

calls maj at osoe be made for the amounts remaining unpaid. (hrdo9a Unum Co.,
(1891) 2 Ch. 680.
Set-off. As to setting off calls against debentore debts, see ^ Taunton, ^. Cb., (1893)

2 Ch. 175 ; against director's fees, Wathingtm Diamond Co,, (1893) 3 Ch. 95.
See further as to set-off, ifrfra, p. 643.



Form 476. PBooBDimB where these ib a Oommittee of LrsPBonov.

Notice to each , «,. .7^ x

member of {UtU,)

i^^tion of Take notice that a meeting of the committee of inspection of the

meeting for above coy will be held at , on the [to he a date not less than seven

^po^ caU. ^y^f^<>^ ^^* ^'* when the notice will in course of post reach the person

Form 60 of l<^ whom it is addressed] day of , 19 — , at o'clock in the

1908. ^noon, for the purpose of considering and obtaining the sanction of

the committee to a call of /. per share proposed to be made by the

liqr on the oontributories.

Annexed hereto is a statement showing the necessity for the pro-
posed call and the amount required.

Dated this day of , 19 — .

> lOffEeer and] Liqr.



Statement,

1. The amount due in respect of proofs admitted against the ooy,
and the estimated amount of the costs, charges, and expenses of the
winding-up, form in the aggregate the sum of /. or thereabouts.

2. The assets of the coy amount in value to the sum of /. There

are no other assets, except the amounts due from certain of the con-
tributories to the coy, and in my opinion it will not be possible to
recdize in respect of the sd amounts more than /.

3. The list of oontributories has been duly settled, and persons have
been settled on the list in respect of the total number of shares.

4. For the purpose of satisfying the several debts and liabilities of
the coy, and of paying the costs, charges, and expenses of the winding-
up, I estimate that a sum of 1, will be required in addition to the

amount of the coy's assets hnbefore mentd.

5. In order to provide the sd sum of /. it is necessary to make a

call on the oontributories, or having regard to the probability that
some of them will partly or wholly fail to pay the amount of the call,
I estimate that for the purpose of realizing the amount required it is
necessary that a call of /. per share should be made.

{Annex tabular statement showing amounts of debts, costs, Sfc, and of
assets,)



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^



OONTBIBUTORIES. 629

In the matter of, &c. Form 477.

Notice is hby given that the undersigned liqr of the aboye-named j^dvertise-
007 proposes that a call should be made on all the oontributories of the ment of meet-

sd coy [or as the case may he] of /. per share, and that he has sum- ^§^ ^™'

moned a meeting of the committee of inspection of the coy to be held inspeotion.

at , on the day of , 19—, at o'clock in the ^^rm 61 of

noon, to obtain their sanction to the proposed call.

Each contributoxy may attend the meeting and be heard, or make
any conmiunication in writing to the liqr or the members of the com-
mittee of inspection to be laid before the meeting in reference to the
intended call.

A statement showing the necessity of the proposed call and the pur-
pose for which it is intended may be obtained on application to the
liqr at his office at [insert address J]

(Signed)

Dated this day of , 19 — . , liqr.



(^•'^0 Form 478.

Besolyed, that a call of 1, per share be made by the liqr on all Resolution of

the contributories of the coy [or as the case may 60]. committee of

(Signed) ^^^

Members of the Committee of Inspection, oall.

Dated this day of , 19—. Form 62 of

•^ 1903.

A copy of the above reeolntion must be forthwith Bezred upon each of the oon«

txibntories included in such call, together with the notice as in the next form ; but

such resolution need not be advertiBed unless for any special reason the Court so

directs. See B. 89 of 1903, supra.



In the Matter of . Form 478a.

I, G. S. B., the [off recr and] liqr of the above-named coy, in pur- i5ocum^t
suance of [an order of Ct, or resolution of the committee of inspection] making a call.

made [or passed] this day of , 19—, hereby make a caU ?g^^®°'

of /. per share on all the contributories of the coy, which sum is to

be pd at my office [insert address"] on the day of , 19 — .

Dated this day of , 19 — .



{TitU,) Form 479,

Take notice that the Oommittee of Inspection in the winding-up of Notice of can

this coy have sanctioned a oall of /. per share on all the contribu- Banotifned bv

. •^ ^ committee of

tones of the coy. inspection to

The amount due from you in respect of the caU is the sum of /.

P. MM



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530



WINDING-UP BY THE OOUBT. [ChAP. XXXVIII.



be Bent to
oontributoiy^
Form 63 of
1903.



Interest.



This Bum ahould be pd by you direct to me at tny office, at [^state
addreasif ^^ ^^ before the day of , 19 — .

Dated this day of , 19 — .

, Liqr.

To Mr. .

This notioe most be served, with a oopj of the resolntion as in the last f onn, on
eaoh contributory included in the call. See R. 89 of 1903, supra.

As to interest : provisions in the articles as to interest on calls in arrear do not
apply t J calls made in winding-np, Welsh Flannel Co., 20 Eq. 360 ; but interest may
be recovered under 3 & 4 Will. 4, o. 42, if notice of the intention to ohwg« is given,
see £x parte Zintott, 4 Eq. 184 ; Barrow^s case, 3 Ch. 184 ; tf.y., by adding to the
notice the words ** In default of payment interest at the rate of 6 per cent, per
annum will be charged upon the amount unpaid."



Form 480.

Summons for
intended calL
Form 64 of
1903.



Contents of
summons.



Proosdubb whebb no Committee of Inspection.

(Title.)

Formal parte : Bee Form 10.

Let the several persons whose names and addresses are set forth in
the second column of the schedule hereto, being contributories of the
above-named coy as shown in the third column of the sd schedule,

attend at on day, the day of , at o'clock in the

noon, on the hearing of an applicon of the liqr of the above-named

coy, for an order that he may be at liberty to make a call to the amount

of per share on all the contributories [or if upon any particular

class, specify the same^ of the sd coy.

This summons was taken out by A. and B., of , in the county

of , solors for the liqr.

To [the several persons resply named in the second
colunm of the schedule hereto, being contributories
of the sd coy proposed to be included in the sd call].

Schedule.



No. on List.



Name and Address.



In what (duuraoter innluded.



A summons is required where there is no committee of inspection. See Br. 86, 87
of 1903, supra, and compare sect. 9 (9) of 1890.

The summons must state the proposed amount of such call, and be served four
clear days at the least before the day appointed for making the call on eyery con-
tributory proposed to be included in such call ; or if the Court so dfieots, notice of
such intended call may be giyen by advertisement, without a sepaiate notice to each
contributory. See R. 87 of 1903, supra.

For advertisement, see Form 481, infra.



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CONTBIBUTOEIES. 631

Form 481.



{Title.)



Advertifie-
Notice is hby given that the Inatne of Ct] Ot has appointed the- ment of

day of , 19—, at o'clock in the noon, at [state place ^^""^^ <^'

of appointment'], to sanction a call on all the contributories of the sd coy ^903,

[or 08 the case may be], and that the liqr of the sd coy proposes that

such call shall be for /. per share. All persons interested are

entld to attend at such day, hour, and place, to ofEer objections to

such call.

Dated this day of , 19 — .

G. H., liqr.

See Br. 86, 87 of 1903, supra.

The above fonn is based on Form 86 ol 1862. But it is not xumal to adyertise
intended calls.



{Title.) Form 482.

I, , of , &o. [off recr and] the liqr of the above-named coy, Affi^yit of

make oath and say as follows : — support of

1. I have in the schedule now produced and shown to me, and ^^^'^^^ ^'
marked with the letter '' A," set forth a statement showing the amount Form 55 of
due in respect of the debts proved and admitted against the sd coy, ^^^3,

and the estimated amount of the costs, charges and expenses of and
incidental to the winding-up the affairs thof, and which several
amounts form in the aggregate the sum of /. or thbts.

2. I have also in the sd schedule set forth a statement of the assets

in hand belonging to the sd coy, amounting to the sum of /. and

no more. There are no other assets belonging to the sd coy, except
the amounts due from certain of the contributories of the sd coy, and,
to the best of my information and belief, it will be impossible to realize
in respect of the sd amounts more than the sum of /. or thbts.

3. persons have been settled by me on the list of contributories

of the sd coy in respect of the total number of shares.

4. For the purpose of satisfying the several debts and liabilities of
the sd coy, and of paying the costs, chains and expenses of and

incidental to the winding-up the affairs thof, I believe the sum of /.

will be required in addition to the amount of the assets of the sd coy
mentd in the sd Schedule '' A " and the sd sum of /.

5. In order to provide the sd sum of /. it is necessary to make a

call upon the several persons who have been settled on the list of con-
tributories as before mentd, and having regard to the probability that
some of such contributories will partly or wholly fail to pay the amoxmt
of such call, I believe that for the purpose of realizing the amount

M M 2



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682



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



required as before mentdi it is necessary that a call of /. per share

should be made.

Sworn at , in the county of , this

day of , 19 — ,

Before me .

Oases stand- The above form is based on Form 33 of 1862.

ing over. Where there are disputed contribatory cases standing over, it may be expedient,

as under the old practice, to add a further paragraph to the effect that, ** even if A.
and B., alleged oontributories, whose cases are standing over, were settled on the
list of contributories, I believe that it would be necessary to make the said call to
the full amount hereinbefore proposed.'* Such a paragraph sometimes prevents
vexatious opposition.

The following is a form of schedule annexed to the affidavit in support of an
application for a call : —



SOHEDULE OF LIABILITIES AND AsSETS.





Abbbts.


Amounts of debts and lia-
bilities


£ *. d.


Amount in Bank of Eng-
land (Ck>mpanies Liquida-
tion Account)


£ #. d.






Estimated amount of costs,
charges, and expenses of
and incidental to the wind-
ing-up of the company,
including liquidator and
his solicitor


Leasehold premises at ,

and stock-in-trade, esti-
mated to be of a value not
exceeding




Total








Total.


£


£









Form 482a. [See Form 478a, supra.l



Precept for
can.

Form 483.

Affidavit of
service of
summons
for call.

[Form 480]



Formal parts. See Form 11.

1. The first six columns of the schedule now produced and shown
to me, marked A, contain a true copy of the first schedule to the
certificate of the [off recr and] liqr of the above-named coy of the sd

settlement of the list of contributories of the coj, dated the daj

of , and filed the day of , as I know from having on the

day of examined and compared the sd schedule marked A,



with [an office copy] of the sd list.

2. I did, on the day of , in the manner hnftr mentd, serve

a true copy of the summons now produced and shown to me, marked B,
upon each of the respective persons, whose names, addresses and
descriptions appear in the second, third and fourth columns of the



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CONTRIBUTOEIES. 633

sd schedule marked A, except, &c. [a« in Form 458, substituting
** amnmons ^^/or " notice "].

8. I served the sd respective copies of the sd summons by putting,
&c. [<w in Form 458].



Schedule as in Form 459.

See K. 87 of 1903, tupra, p. 527, which proyidee for semce as above, or, if the
Court BO direots, for advertisement, as in Form 481.



TTpon the applicon of the [off recr and] liqr of the above-named Perm 484.

coy, and upon reading the afPt of the sd [off recr and] liqr, filed , Order

19 — , and the exhibit marked A therein referred to, and an afft of sanctioning

a call.
, filed , 19 — , it is ordered that leave be given to the [off YoTm67 of

recr and] liqr to make a call of /. per share on all the contribu- 1903.

tones of the sd coy [or as the case may be"]. And it is ordered that

each such contributory do, on or before the day of , 19 — ,

pay to the [off recr and] liqr of the Coy the amount which will

be due from him or her in respect of such call.

The above form is founded on Form 36 of 1862.

For order for call on foreign and colonial shareholders who had failed to adopt a
scheme of arrangement, see New Zealand, ^e. Go, (00202 of 1893), Hood, Keg.,
6th Nov., 1896.

As to serving a copy of the order, see R. 89 of 1903, infra.

The olerk or other person who serves the copy order and notice (Form 491) Beoord of
should record what is done, so that he may be able to make an affidavit or affidavits servioe.
of service in the terms of Form 494 as regards those oontributories who do not pay.
Where the oontributories are numerous, the copies of the order for service are
usually printed, and in that case the notice (Form 491) is also printed at the foot or
back of the copy order. See as to enforcing order, Forms 492 et teq. Before a Enforcing
writ of Ji. fa. can be obtained, an order must be obtained for payment to the order,
liquidator. Zeedt Banking Co., I Ch. 160; 86 L. J. Ch. 811.



Upon the applicon of 8., the off recr and liqr of the above-named Form 485.
coy> by summons dated, &c., and upon hearing the applicant in person ^^^^^^
and the solors for B. and D., the respts to the sd summons, and read-
ing the order to wind up the sd coy dated, &c., the certificate of the
applicant of the settlement of the list of oontributories of the sd coy
dated, &c., and the afft of the applicant filed, &c.,.It is ordered that
leave be given to the sd off recr and liqr to make a call of 5L per share
on the sd B. and D. resply contributories of the sd coy. And it is

ordered that each such contributoiy do on or before the of ,

1895, pay to the sd off recr and liqr the amount which will be due



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:534 WINDING-UP BY THE COURT. [ChAP. XXXVUl.

from him in respect of the sd call. Buck/astlet^h Oas Co, (0027 of
1894), Hood, Beg., 2lBt March, 1895.



Form 486. Upon the applicon by summons, &c., Order that the sd B., aa snch

^^oljljgi, off recr and liqr be at liberty to make a call of /. per share

(modem). on the contributories of the sd coy named in the schedule to the sd
summons, dated, &c.. And order that each such contributory do on or

before the day of 1899, pay to the sd off recr and liqr tlje

amount which will be due from him or her in respect of such call.
Ciiy of Melbourne Bank (00156 of 1897), Hood, Eeg., 15th March,
1899.

In this oase a soheme of arrangement had been sanctioned.



Form 487.

Another.



Upon the applicon of the off liqr of the above-named coy, and upon
hearing, &c., it is ordered that a call of 6/. per share be made on all
the contributories of the sd coy named in the schedule to [the sd chief
clerk's certificate, dated, &c.], except such of them as have fully paid
up their shares, and excepting also H., without prejudice to such right
in respect of his shares in the coy as the off Hqr can establish in the
bankruptcy of the said H., but as to such of the contributories aa have
made payments on account of such call the off liqr is to give them
credit for the amount so pd. And it is ordered that each such contri-
butory do, on or before the 2drd day of March, 1886, pay, &c. Oeneral
Share Trust Co., Eay, J., 2nd Mardh, 1886.



Form 488.

CaUtofoU
amount.



Upon the applicon of the [off] liqr, &c.. Order that a call to the
extent of the full amount remaining unpaid be made on all the con-
tributories of the sd coy whose names are set out in the schedule to the
sd chief clerk's certificate in respect of the shares held by them in the
sd coy. And [order for payment into hanJi]. Sovereign Co,, 15th July,
1877. B. 1849. Countesthorpe Co., Chitty, J., 13th March, 1883.
A. 410.

Order for call on all oontribntories " except those numbered , whose sharei

are fnllj paid np.'' Carta Fara Co., Pearson, J., 22nd March, 1886. A. 443.



Form 489. Upon the applicon of the off liqr, &o., Order that a call of AL per
Order for obJI "hare be made on the contributories of the coy, other than the con-
payable by tributories [compromised^ whose names, and the number of whose



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 69 of 152)