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Form 681. above section, and accordingly voluntary winding up is usually determined on by special or extraordinary resolution. Where a company is in difficulties, and pressed by its creditors, an extraordinary resolution to wind up is generally passed, for that is the quickest mode of bringing about a voluntary winding up : in other cases a special resolution [supra, p. 193] is usually passed.

Although this enactment appears to contemplate the appointment of the liquidators after the passing of the special or extraordinary resolution for winding up, there is no objection, in the case of a special resolution, to an appointment of the liquidators (as in the above form) at the first meeting, followed by a confirmation of the resolution at the second meeting. London & Australian Agency, W. N. 1873, 198; 22 W. R. 45; Petersburg Gas Co., 33 L. T. 637. And this course is frequently adopted. Where, however, the resolution passed at the first meeting does not purport to appoint liquidators, they are usually appointed at the second meeting immediately after the confirmation of the special resolution. Liquidators may be appointed at the second meeting, in the case of a special resolution, and at the only meeting, in the case of an extraordinary resolution, without notice having been given of the intention to propose a resolution for their appointment. Oakes v. Turquand, L. R. 2 H. L. 325.

But it is usual to mention the matter in the notice; and very commonly the notice states the names of the persons to be proposed for appointment. Sometimes, in the case of a special resolution, nothing is said about liquidators in the notice convening the first meeting, but the notice convening the second meeting contains a statement as to their appointment, as in Form 682.

Where there is a special resolution an appointment at the first meeting is ineffectual unless confirmed at second. Re Indian Zoedone, W. N. 1884, 50. Sometimes both meetings are convened by one notice. See supra, p. 213.

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to confirm

Notice, &c. [as in Form 681 to "

the day of

noon"], when the subjoined

second meeting resolution which was passed at the extraordinary meeting of the co, held will be submitted for confirmation as a special resolution: "That," &c. [set out the resolution].

special resolution to wind

up.

If the resolution does not purport to appoint liquidators, add :

Should the resolution be confirmed a further resolution will be proposed at the same meeting for the appointmt of a liq or liqs [or for the appointmt of A. and B. to be liqs] for the pposes of such winding up [and fixing his or their remuneration].

Dated, &c.

No.

St., &c.

By order of the Board,

Secretary.

In most cases the remuneration of the liquidators is not determined at the time of their appointment, but it is by no means uncommon to determine it then. See infra, Form 700.

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Notice of meeting to pass

Co, Limtd.

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noon"], for the ppose

of considering, and if deemed expedient passing, the following extra

ordinary resolution, that is to say: "That it has been proved to the Form 683. satisfon of this meeting that the co cannot by reason of its liabilities extraordinary continue its business, and that it is advisable to wind up the same, and resolution to wind up. accordingly that the co be wound up voluntarily."

Should the resolution, &c. [as in Form 578].
Dated, &c.

No.

St., &c.

By order of the Board,

Secretary.

It is essential to the validity of an extraordinary resolution for winding up that the notice convening the meeting should give the members notice, expressly or impliedly, that the resolution will take effect under s. 129, sub-sect. 3, and consequently will not require confirmation at a second meeting. In re Bridport Co., 2 Ch. 194; In re Silkstone Co., 1 C. D. 38. Accordingly, some persons insert in the notice a statement that "the above resolution is intended to take effect under sub-sect. 3 of section 129 of the Companies Act, 1862," or other words to that effect. But a notice framed as in Form 579 is sufficient. Stone v. City & County Bank, 3 C. P. D. 282. More companies are wound up by extraordinary than by special resolution: it is speedier.

In the matter, &c.

Form 684.

special resolu

At an extraordinary general meeting of the above-named co, duly con- Notice for vened and held at on the day of, the following special Gazette of resolution was duly passed, and at a subsequent extraordinary general tion to wind meeting of the members of the sd co also duly convened and held at the up. same place, on, &c., the following resolution was duly confirmed, viz. :That, &c. [set it out].

[If the resolution does not purport to appoint liqgs, add:] And at such last-mentd meeting of was appointed liq for the pposes of the

winding up.

Dated, &c.

Chairman.

Notice of any special or extraordinary resolution for winding up must be given in the London Gazette as respects companies registered in England. S. 132 of the Act.

Note:-As a general rule where the witness to a signature is a solicitor whose name appears in the current Law List, no further evidence or insertion is required; but the Gazette officials reserve the right of calling for a declaration in any case where they may deem it necessary.

In the case of an extraordinary resolution, the notice for the Gazette will be as follows::

In the matter, &c.

At an extraordinary general meeting of the members of the abovenamed co, duly convened and held at on the day of the following extraordinary resolution was duly passed :

M M

Form 685.

Notice for

Gazette of extraordinary

Form 685.

resolution to wind up.

That it has been proved, &c., and at the same meeting was appointed liq for the pposes of such winding up. Dated this

day of

of

Chairman.

The notice for insertion in the Gazette must be signed by the chairman of the meeting at which the special resolution was confirmed, or at which the extraordinary resolution was passed, as the case may be. His signature must be attested by a witness [see note p. 529], and there must be a duplicate attested and verified by the statutory declaration of a director, secretary, or member of the company who was present at the meetings or meeting, as the case may be.

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As regards a special resolution, the declaration should run as follows:- of -, do solemnly and sincerely declare as follows:-(1.) That extraordinary general meetings of the Company, Limited, were duly held on the day of -- -, and day of — at --; (2.) That the resolution mentioned in the annexed notice marked A. was duly passed at the first of such meetings, and confirmed at the second meeting; (3.) That —was duly appointed chairman of the second meeting; (4.) That I was present, and saw the said sign the said notice hereto annexed, and that the signature, set and subscribed to the said notice, is of his proper handwriting. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act, 1835.

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As regards an extraordinary resolution, the declaration should state: (1) That an extraordinary general meeting of the company was held on the day of at -; (2) That the resolution mentioned in the annexed notice marked A. was duly passed at such meeting; (3) That - --was duly appointed chairman of the said meeting; (4) As in the preceding case.

Form 686.

Notice to
Registrar of

special resolu-
tion to wind

up.

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Notice of the passing of a special resolution to wind-up must also be given to the Registrar of Joint Stock Companies, by filing with him a printed copy. See supra, p. 216. And it is desirable to send him a copy of any extraordinary resolution for winding up.

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Notice to contributories.

the

And in the matter of The Co, Limtd.

Take notice that A. B., the liq of the above-named co, has appointed - day of at o'clock in the [fore]noon at his office, [No. Street, in the City of London] to settle the list of contributories of the above-named co which has already been made out by him, and that you are included in such list in the character and for the number of shares stated below; and that if no sufficient cause is shown

by you to the contrary at the time and place afsd, the list will be settled Form 687. by the sd liq including you therein.

Dated the

To Mr.

day of

A.

-, Liquidator.

THE SCHEDULE [as in Form 26 in Schedule to Rules].

Under s. 133 of the Act the liquidator has power to settle the list of contributories; and any list so settled is to be primâ facie evidence of the liability of the persons named therein to be contributories. The form of the list should be similar to that used in a compulsory winding up. See Form 25 in Schedule to Rules. It can be intituled, "In the matter, &c. [as above], list of contributories of the above-named company." It is usual to fix a day for settling the list, and to give notice thereof to the contributories, as in Form 687; but it is not essential so to do. Brighton Arcade Co. v. Dowling, L. R. 3 C. P. 175, 187; London Bank of Scotland, W. N. 1867, 114.

At the time fixed by the notice, the liquidator will proceed to settle the list, taking notice of any objections then or theretofore made. Any doubtful cases can be adjourned for further consideration. As to who should be on the list, see s. 38 of the Act, and Buckley, 128 et seq.; Lindley, 1327 et seq. When the list has been settled altogether or in part, the liquidator very commonly signs a certificate, following as nearly as may be Form 31 in the Schedule to Rules.

A contributory who objects to his name being placed on the list can apply to the Court to rectify the register of members, or the list of contributories, or both, or he may wait till a call is made on him, and proceedings taken to enforce the same, and then resist.

If there are many disputed cases, the liquidator sometimes applies to the Court to settle the list, or applies as regards the cases in dispute. In the former case the liquidator takes out a summons that the list of contributories of the company may be settled by the Court, and that all proper inquiries may be inade, and directions given for that purpose, and the subsequent proceedings will be similar to those in a compulsory winding up, supra, Form 494, et seq. If the dispute is only as to a single person or a few persons, the summons will be "that it may be determined whether A. B. is or is not a contributory," "that it may be declared that the liquidator of the above-named company is entitled to settle A. B. of upon the list of contributories of the company in respect of shares of -l. each, numbered - to- both inclusive, and upon each of which shares the sum of -l. and no more has been paid up."

or

However, in most cases, the liquidator settles the person disputing on the list, and leaves him to litigate the matter by applying to the Court, or by resisting proceedings to enforce a call.

Applications by contributories to have their names removed from the list are common; they are usually made by motion or summons.

In the matter, &c.

I, the undersigned

hby make a call of

of, the liq of the above-named co, do 7. per share upon all the contribs of the sd co [or upon the several persons named in the second column of the schedule hto, being respively contribs of the sd co in respect of the number of shares set opposite their names respively in the same schedule Dated, &c. Schedule as in Form 687.

Form 688.

Call.

Form 688.

The list of contributories having been settled wholly or in part, the liquidator will from time to time make calls on the contributories under sub-sect. 9 of s. 133 of the Act. It is not necessary to give any notice of the intention to make a call, though it is sometimes done. The liquidator should make the call by an instrument in writing, which can be as in Form 689.

The call having been made, the liquidator will give notice thereof to the contributories. Such notice may be as follows :

Form 689.

Notice of call.

of

In the matter of, &c.
day of

I, the undersigned

Take notice that on the

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the liq of the above-named co, make a call of ——l. per share upon all the contribs of the above-named co [or as the case may be], and that the amount due from you in respect of the call so made is the sum of 7., which sum you are hby required to pay to me at my office situate, &c., on or before the day of next. In default of paymt, interest at the rate of — p. c. p. a. will be charged upon the amount unpaid.

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Dated, &c.

To W.

of

A. B., Liq.

Form 690.

Summons or notice of motion to

enforce calls.

If the call is not duly paid, the liquidator will, if necessary, take proceedings to enforce payment.

Upon the hearing of an applicon on the pt of A. B., the liq of the above-named co, that the several persons named in the second column of the schedule hto, being respively contribs of the sd co, may be ordered to pay to the sd A. B. as such liq as afsd at his office situate at within four days after service upon them respively of the order to be made hereon, the several sums of money set opposite to their respive names in the seventh column of the schedule hto, being the amounts due from the sd several persons respively in respect of a call of -l. per share made by the sd A. B. as such liq as afsd on the day of —, And that the sd several persons may be ordered to pay the costs of this applicon. [Schedule, see Form 674.]

Calls made in a voluntary winding-up can be enforced by action brought by the liquidator, in the name of the company, against the contributories, or by proceeding under s. 138 of the Act of 1862. The latter is the best course, and is generally adopted. In re Whitehouse & Co., 9 C. D. 595.

The application should be by motion or summons. See infra, Forms 693, 694.

Form 691. Upon the applicon of E., the liq of co, by summons dated 2 June, Order enforcing 1877, and upon reading, &c., Let the several persons named in the call made by second column of the schedule to this order, being contribs of liquidator. sd co, on or before 20 July, 1877, or within four days after service of this order, pay to E. the liq of sd co, at his office, No. &c., the several sums set opposite their respive names in the sixth column of the sd schedule hto: such sums being the amounts due from the sd

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