of 1862, the company is not dissolved until the winding up is Bk. IV. Chap. 1. completed (m). order. Sect. 7. When a winding-up order is made, a copy of the order is to Notice of the be sent by the company to the registrar of joint stock companies (n). The registrar of the Court must give notice of the order to the Official Receiver on the day on which it is pronounced (0), and send him three copies of it (p). The Official Receiver must serve a copy of the order on the company (q), and give notice of it to the Board of Trade, whose duty it is to advertise it in the London Gazette (1). The Official Receiver must also advertise it in some local paper (s). order. Under the former practice, if more than one petition had Carriage of the been presented the carriage of the order was usually given to the first petitioner (t). As a general rule the priority of the petitions is determined by the date of presentation (u). Under the present practice the carriage of the order is not of the same importance. For, as will be seen hereafter, the conduct of the proceedings in a winding up is now largely in the hands of the Official Receiver and liquidator, and the liquidator is no longer the nominee of the petitioning creditor. order. No appointment is usually made for settling the order (y), Settling the but the petitioner and all persons who appeared at the hearing of the petition must leave the documents required for this purpose at the registrar's office not later than the day following that on which the order was made (z). (m) 25 & 26 Vict. c. 89, §§ 111 and 143. As to the powers of the registrar of joint stock companies to strike a company which is being wound up off the register, see Companies Act, 1900, § 26. As to the jurisdiction of the Court over a company actually dissolved, see infra, sect. 16 of this chapter. (n) Comp. Act, 1862, § 88. (0) Rules, 1892, r. 22, and form 19A to Rules, 1890. (p) Rules, 1890, r. 39. As to sealing all orders, &c., see Rules, 1892, r. 8. (q) Rules, 1890, r. 40. (r) Ib. r. 41 (1). (8) Ib. r. 41 (2). For form of advertisement in local paper, see form 20. (t) Storforth Lane Colliery Co., 10 Ch. D. 487; General Financial Bank, 20 Ch. D. 276; Dublin Grains Co., 17 L. R., Ir. 512. (u) Building Societies Trust, Ld., (y) Rules, 1892, r. 24. Bk. IV. Chap 1. The first proceedings usually taken after a compulsory winding-up order has been made are the holding of the first Proceedings under the order. meetings of creditors and contributories to consider the desirability of applying to the Court for the appointment of a liquidator and a committee of inspection (a), the preparation of the company's statement of affairs (b), and the consideration of the Official Receiver's reports (c). It is the duty of the Official Receiver to see that the requirements of the Companies (Winding-up) Act, 1890, in respect of these matters are duly carried out (d). As soon as practicable after a winding-up order has been made, it is the duty of the Court to settle the list of contributories, and to cause the assets of the company to be collected and applied in discharge of its liabilities (e). These duties, and many other of the duties of the Court under the Act of 1862, are now discharged by the liquidator as an officer of the Court and under its control (ƒ), and will be considered hereafter (g). Registrars and proceedings in chambers. All proceedings in the winding up of companies in the High Court are attached to one or more of the registrars who act under the general or special directions of the judge (h), but any other registrar may act for the registrar to whom the proceedings have been attached (i). With the exception of certain matters which the Rules require to be heard before the judge in open Court (k), any matter may be heard and determined in chambers (). Subject to the provisions of the Acts and Rules the judge may authorise the registrar to hear and determine any matter which under the Acts or Rules may (a) Act, 1890, § 6, and infra, p. 956. (d) See as to the position and (e) Comp. Act, 1862, § 98. (f) See Act, 1890, §§ 12 and 13, and Rules, 1890, rr. 83 and 89. (g) See as to liquidators, infra, pp 965 et seq. (h) Rules, 1892, r. 2 (1). (k) Ib. r. 3. The excepted matters are petitions; appeals from the Board of Trade and Official Receiver (acting as Official Receiver, National Whole Meal Bread Co. [1892], 2 Ch. 457) to the Court; applications by the Board of Trade under § 15 of the Act of 1890; applications for committal for contempt and such other matters as the judge may by special or general order direct. In Courts other than the High Court, see Rules, 1890, r. 5. (1) Rules, 1892, r. 3 (3). Sect. 7. be determined in chambers (m). And the registrar has in all Bk. IV. Chap. 1. matters within the jurisdiction of the judge all the powers and duties of a master, registrar, chief clerk or taxing master (n). Any matter in chambers may be adjourned into Court, and any matter in Court adjourned into chambers (o). The judge, moreover, is empowered to do in chambers everything which the Court is authorised to do by the Companies Act, 1862 (p). how made. Applications in Court other than petitions are made by Applications, motion, of which not less than two clear days' notice must be given. Applications in chambers other than ex parte applications are made by summons (q). ceedings. A file of all proceedings in the winding up of a company, File of proincluding proceedings in any action brought by or against the company which has been transferred to the judge who exercises jurisdiction in winding up, is kept, as of record, in the office of the registrar (r). The file is open to inspection by the directors Inspection of file. or officers of the company and by the officers of the Board of Trade, and, on payment of a small fee, by every contributory (8) or creditor whose claim has been admitted (t). These persons are also entitled to take or be furnished with copies of or extracts from any of the documents on the file (u). But depositions (x), except those taken on a public examination under the Companies Winding-up Act, 1890, § 8, are not to be placed (m) Ib. r. 4. (n) Rules, August, 1892, r. 2. to (q) Rules, 1892, r. 5, and as applications under § 10 of the Act of 1890, see Rules, 1890, rr. 78 and 79, and infra. As to the general title of proceedings, see Rules, 1892, r. 6. For form of summons, see form 58 to Rules of 1890. Orders, summonses, notices, &c., must be sealed, Rules, 1892, r. 8. As to preparation and issue of summons, see ib. r. 9, and of orders, see ib. r. 10. As to office copies, see r. 12. (r) Rules, 1892, r. 11, and Rules, August, 1892, r. 3. In Courts other than High Courts, see Rules, 1892, r. 31. (s) Including an alleged contributory, see Comp. Act, 1862, § 74. (t) Rules, 1892, r. 32. The file of proceedings is to be sent to the Board of Trade or Official Receiver, if required by them in the exercise of their functions under the Act, r. 33. (u) Ib. r. 32. (x) As to the shorthand notes of evidence of witnesses, see Rules, 1890, r. 16, and forms 5, 6, 7, and 8. Sect. 7. Bk. IV. Chap. 1. on the file or to be open to inspection by any person other than the Official Receiver or liquidator, unless the Court so directs (y). Attendance of parties. Service of notices. Wishes of creditors and contributories to be consulted. With respect to the attendance of parties, every contributory on the list, and every creditor of the company whose proof has been admitted, is entitled, at his own expense, to attend the proceedings, and to have notice thereof (z). But no such person is entitled to attend until he has entered in a book kept by the registrar, the name and address of himself and of his solicitor (a). Where the attendance of the liquidator's solicitor is required, the liquidator need not attend in person unless his presence is necessary or the Court directs him to attend (b). All notices and other documents for the service of which no special mode is directed, may be sent by prepaid post letter to the last known address of the person to be served, and such service is to be considered as made at the time the letter ought to be delivered in the due course of delivery by the post-office, notwithstanding that it may be returned by the post-office (c). The Court has no jurisdiction to serve notices of orders or of other proceedings in a winding up upon persons residing out of the jurisdiction of the Court, if the notices are in substance the commencement of proceedings against the persons on whom they are served (d) ; but notices which are not of this character may be served abroad (e). In all matters relating to the winding up of companies, the Court may have regard to the wishes of the creditors or (y) Rule, November, 1895. For- (*) Rules, 1890, r. 173. (b) Ib. r. 174. (c) Rules, 1890, r. 21, and see §§ 62 & 63 of the Act of 1862. Service of a debtor summons by leaving it at the registered address of a member will not be good if it is not his true or last known address. See Ex parte Chatteris, 10 Ch. 227. As to the service of notices under the Stannaries Acts, see 32 & 33 Vict. c. 19, § 8. (d) Anglo-African Steamship Co., 32 Ch. D. 348. As to service on an agent in England under the articles of association or under an agreement, see Copin v. Adamson, 1 Ex. D. 17; Montgomery v. Liebenthal [1898], 1 Q. B. 487. (e) Nathan, Newman & Co., 35 Ch. D. 1; and Baron Liebig's Cocoa Works, Limited, W. N. 1888, p. 120. Sect. 7. contributories (ƒ), and may direct meetings to be held in order Bk. IV. Chap. 1. to ascertain their wishes, and may appoint a person to act as chairman (). This power may now be exercised by the liquidator subject to the control of the Court (h). For the rules applicable to such meetings, the reader is referred to the Rules themselves (i). No proceedings under the Acts are invalidated by any formal Formal defects. defect or by any irregularity, unless the Court is of opinion that substantial injustice has been caused, and cannot be remedied by any order of the Court (k). The Court may extend or abridge the time appointed by the Enlargement, Rules or orders, for doing any act or taking any proceedings (1). &c., of time. The right of creditors and contributories to inspect the books Inspection of of a company being wound up, will be alluded to hereafter when books, &c. noticing the duties of the liquidators (infra, p. 975.) The exemption from stamp duties of certain documents Exemption from stamp duties. relating to bankruptcies contained in the Bankruptcy Act, 1883 (§ 144), has been extended to companies which are wound up by order of the Court (m). 2. Extraordinary powers of the Court. In order to enable the Court more effectually to exercise its winding-up jurisdiction, certain extraordinary powers are conferred upon it which it will be convenient here to notice (n). The Court which will be referred to in the following pages will, (f) $91. Including alleged contributories, see § 74. (7) See, as to submitting proposals with reference to matters arising in the winding up, Slatter's Executors, 5 De G. & S. 34, and 1 De G. M. & G. 64. And as to misleading such meetings, Septimus Parsonage & Co. [1901], 2 Ch. 424, and ante, p. 860. (h) Act, 1890, § 13, and Rules, 1890, r. 47. See, too, § 23 of the Act of 1890. (i) Rules, 1890, rr. 47-57, and as to proxies, rr. 123-125. As to the counting of votes and the majority necessary to pass a resolution, Rules, 1892, r. 25. (k) Rules, 1890, r. 177. Irregu- (m) Finance Act, 1895, 58 Vict. (n) These extraordinary powers are in addition to and not restrictive of the ordinary powers of the Court, § 119 of the Companies Act, 1862. |