Bk. IV. Chap. 1. and notice of the filing must be given to the petitioner or his Sect. 5. Affidavits in reply. Cross examination. Appearance in support and opposition. solicitor. Affidavits in reply to an affidavit filed in opposition must be filed within three days of the date on which notice of such affidavit is received (g). The persons making affidavits can be cross-examined; the Court will, if necessary, order the books of the company to be produced on such cross-examination (h). All persons served with the petition, and also all contributories (i), and creditors (k), but apparently no other persons (1), are entitled to appear on the petition, and to support or oppose it. Every person who intends to appear on the hearing must serve on, or send by post to, the petitioner at the address stated in the advertisement of the petition, notice in writing of his intention (m). The notice must state whether the person giving it intends to support or oppose the petition (n). If the petition asks for a compulsory order, and the person giving the notice intends to support a supervision order, the notice should state this (o). The notice must be signed by the person giving it (p), or his solicitor, and must be served, or if sent by post, must be posted in such time as in the ordinary course of post to reach the address not later than 6 p.m. of the day previous to the day appointed for the hearing. A person who 'fails to comply with the rule as to notice will not be allowed, without special leave of the 9 Eq. 80, and 5 Ch. 600. See, also, S. C., 10 Eq. 337. (g) Companies Winding-up Rules, 29th March, 1893, r. 1. (h) Emma Silver Mining Co., 10 Ch. 194. As to inspection of company's books, see Credit Co., 11 Ch. D. 256; West Devon Great Consols Mine, 27 Ch. D. 106; and by an agent Bevan v. Webb [1901], 2 Ch. 59, reversing ib. [1901], 1 Ch. 724. (i) An allottee of shares who has commenced proceedings to rescind his contract to take shares may appear and oppose the petition without thereby losing his right to repudiate his shares. Tomlin's case [1898], 1 Ch. 105. (k) See Marlborough Club Co., 1 Eq. 216, and the next note. (1) See Bradford Navigation Co., (m) Rules, 1892, r. 20. Semble, a notice need not be sent by a person who is represented by the petitioners' solicitor. Invicta Works, Ld., W.N. 1894, p. 39. (n) See Rules, 1890, form 15a, otherwise he will not be allowed his costs, see Green, McAllan & Feilden, Ld., W. N. 1891, p. 127. (0) Woodrow, Hooper & Co., W. N. 1893, p. 38. (p) A notice given by six named persons as a committee of creditors is merely a notice of the individuals who sign it, see Mid Kent Fruit Factory, W. N. 1892, p. 65. Sect. 5. the hearing. Court, to appear on the hearing of the petition (q). If he Bk. IV. Chap. 1. is heard, he will not, as a rule, be allowed his costs (r). After a petition has been presented, the petitioner must, Attendance before registrar on a day appointed by the registrar, not less than two days and other before the day appointed for the hearing of the petition attend matters before before the registrar and satisfy him that the petition has been duly advertised, that the statutory affidavit verifying it and the affidavit of service (if any) have been duly filed, and that the provisions of the rules as to petitions have been complied with by the petitioner; unless this be done no order will be made on his petition (s). The petitioner must also prepare a list of the List of persons intending to names and addresses of the persons who have given notice of appear. their intention to appear and of their solicitors, and a copy of the list must be handed by the petitioner into Court on the day appointed for, but prior to, the hearing of the petition (t). If no such notice has been received the petitioner or his solicitor should give the registrar notice of the fact (u). The costs of a petition are in the discretion of the Court (x), Costs. but the following rules are usually followed: is made. 1. The costs of a petition on which a winding-up order is Where order made are borne by the company (y); these costs include the costs of the petitioner and of the company, and the costs of all other persons, if any, properly served with the petition (2). But if the creditor's petition is under £50, he will not be allowed his costs in the absence of special circumstances (zz). is dismissed. 2. The costs of a petition which is dismissed are borne by When petition the petitioner; unless the Court is of opinion that the petition was justifiable, in which case the dismissal will be without (q) Rules, 1892, r. 20. (r) Green, McAllan & Feilden, Ld., W. N. 1891, p. 127; Woodrow, Hooper & Co., W. N. 1893, p. 38. (8) Rules, 1892, r. 18. In Kershaw v. Pole, Ld., W. N. 1891, p. 202, a decision under the repealed rule of February, 1891, the petitioner was allowed to satisfy the registrar on these points after the hearing, (t) Ib., r. 21, and form 16A in schedule to Rules, 1890. (u) Australasian Alkaline, &c., Syndicate, W. N. 1891, p. 209. (x) Comp. Act, 1862, § 86. For (y) See Rules, 1890, r. 31. Bk. IV. Chap. 1. Costs. If dismissed with costs, such costs include those of the Sect. 5. Of persons appearing to support or oppose. Provisional liquidator. Voluntary liquidator. company, and of all persons, if any, served with the petition (a). 3. With respect to persons who appear to support or oppose a petition, although not served with it, the usual practice is not to allow any costs to persons who have not given proper notice of their intention to appear (b); and with regard to those who have given such notice, 1, to allow one set of costs to those contributories, and one set to those creditors, who upon reasonable grounds (without being served) appear on the petition and support the view which ultimately prevails— i.e., support a successful, or oppose an unsuccessful, petition. If such persons are represented by the same solicitor as the petitioner or company, their names should be added to the brief for the petitioner or company, for in such a case they are not allowed costs (c); 2, to give no costs to those who (not being served) support an unsuccessful, or oppose a successful, petition; but, 3, to make a petitioner pay the costs of persons who appear to answer and succeed in refuting unfounded charges made against them (d). A provisional liquidator is only in the nature of a receiver, and will not be allowed his costs of appearing on a winding-up petition (e). If the company is already being wound up voluntarily, or under the supervision of the Court, the voluntary liquidator will usually be allowed his costs, if the company appears by counsel instructed by him and is not separately represented (ee). (a) Humber Iron Works Co., 2 Eq. 15. (b) Green, McAllan & Feilden, Ld., W. N. 1891, p. 127; Woodrow, Hooper & Co., W. N. 1893, p. 38. (c) Brighton Marine Palace, &c., Co., W. N. 1897, p. 12. (d) See Hull and County Bank, 10 Ch. D. 130; New Gas Co., 5 Ch. D. 703; Anglo-Egyptian Nav. Co., 8 Eq. 660; European Banking Co., 2 Eq. 521; Anglo-Greek Steam Co., ib. 1; Humber Iron Works Co., ib. 15. Lord Hatherley, when V.-C., refused costs to persons not served. See Oriental Commercial Bank, W. N. 1866, p. 283; Hop and Malt Ex change Co., ib. p. 222; Imperial Merc. Credit Ass., ib. p. 256. (e) General International Agency Co., 36 Beav. 1. He was, however, allowed some costs in Times Life Ass., &c., Soc., 9 Eq. 382, and in European Banking Co., 2 Eq. 521. (ee) Mont de Piété of England, W. N. 1892, p. 166; and Sanitary Burial Assoc. [1900], 2 Ch. 289; A. W. Hall & Co., W. N. 1885, p. 190. In State of Wyoming Syndicate [1901], 2 Ch. 431, a person who had been appointed liquidator by resolutions for a voluntary winding up which were invalid was allowed his costs. Sect. 5. When a petition was presented by a shareholder in a cost- Bk. IV. Chap. 1. book mining company, who had been sued by a creditor, and Costs of prelithe petition was opposed on the ground that the petitioner minary inquiries. was indebted to the company and had not been compelled to pay more than he owed to the company, and an inquiry upon that point was directed by consent, and the result showed that the petitioner had paid more than he owed the company, and a winding-up order was then made, the costs of the preliminary inquiries were thrown on those whose opposition caused them. to be directed (ƒ). Under the former practice a petition might be with- Withdrawal of drawn (g), and ought to have been withdrawn by the petitioner petition. as soon as his claim was satisfied (h); but as a general rule, he could only withdraw it on payment of the proper costs of those who appeared on it, whether to support or oppose it (i), though under special circumstances the Court allowed the petition to be withdrawn without payment of costs (k). Separate sets or only one set of costs might be given to the shareholders and creditors appearing on the petition (1). But Power to now, when a petitioner consents to withdraw his petition or to a petitioner. allow it to be dismissed or adjourned, the Court may substitute as petitioner any creditor or contributory who in its opinion would have a right to present a petition, and who is desirous of so doing (m); in a proper case this may be done, and an order be made without any adjournment (n). Under the present practice the Court, as a rule, will not allow a petition to be withdrawn unless all the creditors of the company are arranged (f) Re Bosworthon Mining Co., 26 L. J. Ch. 612. See, too, when no order was made on the petition, except that the question raised by it should be tried as on a summons, Consolidated Exploration, &c., Co. [1899], 2 Ch. 599. (g) Hereford and South Wales Waggon, &c., Co., 17 Eq. 423; Times Life Ass., &c., Co., 9 Eq. 383; Home Ass. Association, 12 Eq. 59. (h) Times Life Ass., &c., Co., 9 Eq. 383. (1) Nacupai Gold Mining Co., 28 Ch. D. 65; Patent Cocoa Fibre Co., 1 Ch. D. 617; Hereford and South (k) District Bank of London, 35 (1) Criterion Gold Mining Co., (m) Rules, March, 1893, r. 2. substitute Bk. IV. Chap. 1. with, or an opportunity has been given (e.g., by ordering the Sect. 5. Costs of adjournment. Supervision order instead of compulsory order. Several petitions. Former practice. petition to stand over for a week) to any other creditor or contributory to apply to be substituted as petitioner. If the petition is adjourned, the general rule is not to allow any costs of the adjournment, unless they are specially ordered. The petitioner, on the hearing of his petition, may elect to take a supervision order instead of a compulsory order, but the Court may require the petition to stand over to be readvertised (o). If in such a case a supervision order is made, the costs of creditors who appear to support the petition for a compulsory order will be allowed, though they may have opposed the supervision order (p). There is nothing to prevent the presentation of several petitions by several persons, but this practice has always been discouraged as much as possible by the Courts (q). Under the former practice it sometimes happened that persons presented petitions in ignorance that a petition had already been presented, and when this was the case they were generally allowed the costs incurred by them before they had notice of the previous petition (r); but persons who, without some special justification, presented petitions, or proceeded with petitions they had already presented, after they knew of the presentation of a petition earlier than their own, ran great risk of having to pay the costs incurred by themselves, if not also the costs of the persons they served (8). Where, however, the first petition was presented by persons in the interest of the company, and was of a suspicious character, a second petition was considered justifiable (t); and where there were several justifiable petitions and a winding-up (o) See ante, p. 884. (p) Chepstow Bobbin Mills Co., 36 Ch. D. 563. (q) In United Ports and General Ins. Co., 39 L. J. Ch. 146, V.-C. K., the priority of several petitions was determined by the dates of their advertisements, but the date of presentation usually determines the priority; see Building Societies Trust, Ld., 44 Ch. D. 140. (r) General Financial Bank, 20 Ch. D. 276; G. F. Brooke & Co., (8) See, on this subject, Building Societies' Trust, Ld., 44 Ch. D. 140; Ex parte Turner, 3 De G. & S. 127; Times Fire Ass. Co., 30 Beav. 596; and the cases in the next note. (t) General Financial Bank, 20 Ch. D. 276; Humber Iron Works Co., 2 Eq. 15; Commercial Discount Co., 1 N. R. 416. |