Form 410. Another. Form 411. Notice of motion or summons for the appoint ment of a provisional liquidator. Upon the peton, &c. [winding-up order]: And costs to be taxed and pd out of the assets of the sd co, and let all subsequent proceedings herein other than such taxation of costs be had in the County Ct of Glamorganshire holden at Swansea. Morriston's Patent, &c., Co., M. R., 27 Jan., 1877. 189 B. On the pt of A., the petr in these matters [or, of the above-named co], that B., of or some other person may be appointed prov. off. liq. of the above-named [or sd] co. The Court is empowered at any time after the presentation of the petition, and before the first appointment of liquidators, to appoint provisionally an official liquidator. Section 85 of the Act. The appointment may be made on application by summons. See Rule 15. But the application is very commonly made by motion, especially (a) where the company is petitioner or assents, in which case the application can be made ex parte, and (b) where the assets are in danger, or the matter is for some other reason pressing. It is usual to apply for the appointment of some person by name, and the application, whether by motion or summons, should be supported by an affidavit as to the circumstances which render the appointment desirable, and as to the fitness of the proposed liquidator. In a pressing case the order will be made subject to the production of an affidavit of fitness to the registrar. If the company makes, consents to, or is shown not to oppose, the application, the appointment is almost a matter of course, but if the company opposes, special circumstances must be shown, e. g., insolvency, or danger to assets. Clifoden Benefit Building Society, 3 Ch. 462; Emmerson's case, 2 Eq. 231; Marseilles Extension Co., W. N. 1867, 68; Hammersmith Town Hall Co., 6 C. D. 112. The order usually directs the liquidator to give security by a certain day, but sometimes an undertaking is given by the proposed liquidator, or by the petitioner or his solicitor, that the liquidator shall give security forthwith, or within say fourteen days. Pearson, J., upon appointing a provisional official liquidator adjourns the matter to chambers with a view to his giving security. See Order L., r. 17; Re Hoyland Co., 28 S. J. 152. Where the application is not made by or with the approval of the company, notice of motion or summons should be served on the company. If the matter is urgent, liberty to serve short notice of motion can be obtained. Occasionally the provisional liquidator is appointed without being required to give security. This is allowed by Rule 15. Sometimes the appointment is made at the same time as the winding-up order. The Court may, by the order appointing a provisional official liquidator, limit and restrict his powers. Section 96 of the Act of 1862. This power is generally exercised. See Forms 413 et seq., infra. If the provisional liquidator is to carry on the company's business, evidence should be forthcoming to show that it is desirable so to do. The fact that there are contracts on hand, or that the company's difficulties are only temporary, and that serious loss would be caused by stopping the business, or that the goodwill is valuable, and would be lost by stopping, afford ground for authorising the liquidator to carry on the business, at any rate to some extent. If the provisional liquidator is authorised to carry on the business, it may be desirable to obtain liberty to open an account with a loc 1 bank where the business is in the country. See Form 414, infra. The rules as to official liquidators contained in the General Order of 11 Nov. 1862, apply to provisional liquidators. Rule 59. Accordingly as to giving security, see infra, Form 431 et seq.; as to accounts, see infra, Form 412 et seq., and 440 et seq.; as to remuneration, see infra, Form 453 et seq.; as to discharge, see infra, Form 418 et seq. Provisional liquidators frequently make applications to the Court, e. g., to Form 411. authorise sales, to restrain actions or proceedings against the company or its assets, to authorise the borrowing of money to carry on the business, &c. and, both of Upon the applicon of creditors of the Form 412. above-named co, the petrs in the peton presented in these matters on Order on 1 Sept., 1876, by summons dated the 8 Sept., 1876, and upon hearing summons the solors, &c. Let M., of public accountant, be appointed appointing provisional provisionally off. liq. of the above-named co. And Let the sd M., on or liquidator. before 9 Nov., 1876, give security, to be approved by the judge. And Let the sd M., on 2 May, and 2 Nov., 1877, and the same days in each succeeding year, leave his accounts at the chambers of the judge. And Let all monies to be received by the sd M. be pd by him into the Bank of England to the credit of the account of the prov. off. liq. of sd co within seven days after the receipt thereof. Milan Tramway Co., Limtd, Hall, V.-C., 15 Sept., 1876. B. 1611. Order to give security "forthwith is now not unusual where security not to be given before order drawn up. [Appointmt of prov. off. liq.] And this Ct doth hby limit and restrict Form 413 the powers of the sd J. C. to the following acts (that is to say) to taking Order restrict possession of and protecting the assets of the sd co until further order. ing powers. The above is the form not uncommonly used in the absence of special circumstances. Appoint prov. off. liq., Limit, &c. 1. To taking possession of and protecting the assets of the co. 2. To carrying on the business of the co until further order. 3. And to drawing and endorsing bills, and to advancing money to customers, and to do such other things as may be necessary for carrying on the business, without the sanction of the judge. Order that the sd N., as such prov. off. liq. be at libty to open an account at the Bank, for the pposes of the co. And order that all monies which may be received by him as such prov. off. liq. be pd into such account, and that he be at libty to draw on such account for all monies required for carrying on the sd business. And order that if and whenever the balance at the sd Bank exceeds 5007, the excess shall forthwith be pd by the sd N. into the Bank of England to the credit of the prov. off. liq. of the co. South Eastern Warehouse Co., Chitty, J., 7 Aug., 1882. See infra, p. 449. Where liberty to carry on the business is given, it is generally desirable to give liberty to open a local banking account. Sometimes this is forgotten when the order is obtained, and a further order becomes necessary. The following is an example : "Order that notwithstanding the order of 2 July, the provisional official liquidator be at liberty to continue the account already opened by him with Messrs. bank at Derby for the purpose of paying wages and carrying on the business of the company in accordance with the said order, but so that whenever the balance to the credit of such account shall exceed by more than 301. the sum of 2501., the excess shall forthwith be paid into the Bank of Form 414. Liberty to carry on business. Form 414. England to the credit of the provisional official liquidator of the company." Derbyshire Wagon Co., M. R., 12 July, 1879. And see infra, p. 449. Form 415. Liberty for provisional liquidator to carry on business and advance money. Form 416. Provisional liquidator to carry on appeal. Form 417. Order directing provisional official liqui dators to leave account and for taxation and payment of costs. prov. Upon motion for the petrs, &c. Appoint W. off. liq. [usual directions], And Limit and restrict the powers of the sd W. as such prov. off. liq. to the following acts, namely, to carry on and continue the business of co so far as may be necessary for carrying out and completing existing contracts, and keeping the co's furnaces in blast, and for that ppose to raise a sum not exceeding 40007. per week at a rate not exceeding 5 p. c. p. a. with the usual bankers' commission, by the sale of or upon the security of the co's assets, and to make such advances himself: And order that for any advances so made the sd W. do have a first charge upon the undertaking of the co, subject to the incumbrances now existing thereon. Hopkins, Gilkes, & Co., M. R., 15 May, 1879. A. 953. As to the position of a receiver and manager who advances without order, see Ex parte Izard, 23 C. Div. 75. Upon the peton, &c. [usual winding-up order]. And appoint G. the secretary of the sd co prov. off. liq. of the sd co for the ppose only of carrying on the appeal by the sd co against an order of Mr. Justice Manisty in the action of Gibb v. [the co] which is now pending, but the sd G. is not to do any act without the leave of the Judge in Chambers first obtained. Great Southern Mysore Co. Chitty, J., 3 April, 1882. For order appointing provisional official liquidator to receive costs due to the company in respect of a petition which was dismissed, see Langham's Skating Rink, 6 C. D. 102. M. R. 18 June, 1877. B. 1150. Upon the applicon of B. & L. the off. liqs., &c.; Let L., H., and B., who by the sd order of 5 Feb., 1877, were appointed prov. off. liqs. of the sd co without security, on or before 30 June, 1877, or subsequently within 4 days after the service of this order on them, leave in the chambers of the judge their account as such prov. off. liqs., And Let the costs, charges, and expenses of the sd L., H., and B. as such prov. off. liqs. properly incurred be taxed and the amount thereof be pd out of the assets of the sd co as and when the judge shall direct, but in taxing such costs the taxing master is to have regard to any sum or sums of money which may have been received in respect of costs of compromises come to with any contribs or otherwise, And Let the sd L., H., and B. pass their said account, and pay the balance, if any, proved due from them into the Bank of England to the credit of the off. liq. of the sd co within 7 days after the date of the chief clerk's certificate of passing such account, and thereupon let them be discharged as such prov. off. liqs., And in the event of a balance being found due to the sd L., H., and B. on taxing the sd account, let the same be pd to them out of the assets of the sd co as and when the judge shall direct. Hooper's Telegraph Works, M. R., 31 May, 1877. A. 1037. provisional Upon the applicon of H. the prov. off. liq. &c., Let the sd H. be dis- Form 418. charged from the office of prov. off. liq. of the sd co, and let the sd bond, Order disdated, &c., entered into by him, together with The Co, Limtd, as charging his sureties, be vacated, And Let it be referred to the taxing master to liquidator. tax the costs of the sd prov. off. liq., and let him be at libty to apply for paymt thereof when any funds are available for that ppose. General Machinery Purchase Co., 4 June, 1877. A. 1034. For order appointing provisional official liquidator to be official liquidator, and directing him to pass his accounts as provisional official liquidator, and then that recognisance be vacated, see British Farmers, &c., Co., 8 May, 1876. A. 803. provisional neither Upon the applicon of C., the prov. off. liq. of the above-named co, Form 419. and upon hearing the solors for the applicant and for the off. liq. of sd Order disco, and upon reading an order, &c., an afft of the applicant filed, &c., charging whereby it appears that the applicant has not received or pd any sum or liquidator sums of money as such prov. off. liq., Let the applicant be discharged who has as such prov. off. liq., and let the recognisance, &c., be vacated. Tax the received nor costs, charges, and expenses of the applicant as prov. off. liq. properly paid money. incurred from the date of his appointmt up to and including this order, and also the costs of the petr of the applicon to appoint the sd prov. off. liq. and consequent thereon, And let such costs, charges, and expenses be pd out of the assets of the sd co as and when the judge shall direct. National Funds Ass. Co., Bacon, V.-C., 21 April, 1877. B. 928. late pro Upon the applicon of W., late prov. off. liq. of co, and upon hearing Form 420. the solors for the applicant and for C., the liq. of the sd co, and upon Order for reading the order dated 5 June, 1877, the office copy of the recognisance payment to hereinafter mentd, the chief clerk's certificate, dated 8 August, 1877, visional Let the sd C., the liq. of the sd co, out of the assets of the sd co pay to liquidator of the sd W. the sum of 537. 19s. 1d. the balance by the sd certificate balance. certified to be due to him as prov. off. liq. of the sd co, And Let the recognisances dated, &c., and entered into by, &c., be vacated. Lyttle's Iron Agency, Limtd, 9 August, 1877. B. 1488. In the above case a supervision order had been made after the appointment of a provisional liquidator. certified On the pt of A. the petr in the order in these matters dated the Form 421. day of named, to proceed with the winding up of the above-named Summons to co under the sd order. Under Rule 7, a copy of the winding-up order, certified to be a true copy thereof as passed and entered, is to be left by the petitioner at the chambers of the judge, within ten days after the same has been passed and entered. And upon such copy being left, a summons as above is to be taken out and served upon all parties who may have appeared upon the hearing of the petition. The certificate should be written at the foot of the copy order thus: proceed. Form 422. Certificate that copy order true. Form 423. We [or, I] certify, that the above is a true copy of the original order as passed and entered. Dated this A. & B., day of 18-. Solors for the petr. As to what may be done upon the return of the summons, see Rule 7 above mentioned. Upon the return the chief clerk usually fixes a day for the appointment of the official liquidator, and directs notice thereof, and also of the winding-up order to be advertised, and settles and signs the forms of advertisement, and the proceedings are then adjourned. — Co, Limtd. - dated In the High Ct of Justice. Chancery Division. In the matter of the the of set out the whole of the order in the past tense]. of N. G., 15, it was ordered [here Dated this day Street, in the City of London, Solor for the petr. Form 424. Order extending time for advertising winding-up order. Under Rule 6, every order for winding up by the Court, or subject to supervision, is within twelve days after the date thereof, to be advertised by the petitioner once in the London Gazette, and is to be served upon such persons (if any), and in such manner as the Court may direct. The signature of the solicitors must be attested, and the original order or an office copy has to be produced at the London Gazette office. The advertisement must be written on stamped forms. As to staying advertisements pending an appeal, see Form 669. Upon motion &c., for C., the petr named in the order made on the 6th May, 1876, for the winding up of the above-named co, and upon reading the said order, This Ct doth order that the time limtd for the advertisemt of the said order, dated the 6th May, 1876, in the London Gazette, pursuant to the general order of this Ct, be extended to the 19th of May, 1876. Percy, &c., Co., Limtd, Bacon, V.-C., 17 May, 1876. B. 889. Sometimes by accident or otherwise the advertisement is not inserted within the twelve days. In such case an order as above can be obtained on ex parte motion or summons. The order need not be drawn up. Order LII., r. 14. An affidavit explaining the omission is occasionally required. But according to present practice the registrar without any application to the Court by consent inserts, if requisite, in the draft order, a paragraph extending the time. Another plan commonly adopted where the order has not been completed is to apply for liberty to post-date the winding-up order. Dorcase's Society, 11 W. R. 459; Wasland Co., W. N., 1876, 279. Notice is hby given, that Mr. Justice the day of [188] at o'clock in the for appointing. Chambers, in the Royal Cts of Justice, Strand, London [or as the case may be] as the time and place for the appointmt of an off. liq. of the above-named co. Dated this -th day of A. B., Chief Clerk. |