122 Provide for enforcing English and Irish orders in Scotland

176 Part VI., Eng. Act, refers to companies registered under

222

Joint Stock Companies Act."

Part IX. of the Eng. Act, dealing with repeal of Acts and
temporary provisions; with these sections compare ss. 249,
250 N.S.W. Act.

Sections of the

Eng. Act of

1867, 30 & 31

Vict. c. 131.

2Title, reference to Act of 1862, and time of commencement.

166

Preamble

37 Vict. No. 19.

Short title.

Construction of

Act.

26, s. 2.

THE COMPANIES ACT, 1888.*

52 VICT. No. 14.

An Act to Amend the "Companies Act."

[23rd July, 1888.] WHEREAS doubts have been entertained whether the power given by the "Companies Act" to a company of reducing its capital extends to paid-up capital, and it is expedient to remove such doubts, and to increase such power, and otherwise amend the said Act: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :—

1. This Act may be cited, for all purposes, as the "Companies Act of 1888."

2. This Act shall, so far as is consistent with the tenor thereof, 40 & 41 Vict. c. be construed as one with the " Companies Act," and the said Acts may be referred to as the "Companies Acts of 1874 and 1888."

Capital" and powers to reduce capital

Construction of 3. The word "capital," as used in the "Companies Act," shall include paid-up capital; and the power to reduce capital contained in 37 conferred by that Act shall include a power to cancel

Vict. No. 19.

40 & 41 Vict. c. 26, s. 3.

Application of provision of 37 Vict. No. 19.

40 & 41 Vict. c. 26, 8. 4.

any lost capital, or any capital unrepresented by available assets, or to pay off any capital which may be in excess of the wants of the company; and paid-up capital may be reduced, either with or without extinguishing or reducing the liability (if any) remaining on the shares of the company, and to the extent to which such liability is not extinguished or reduced it shall be deemed to be preserved, notwithstanding anything contained in the "Companies Act."

4. The provisions of the "Companies Act," as amended by this Act, shall apply to any company reducing its capital in

*This Act corresponds with the English "Companies Act, 1877," 40 & 41 Vict. c. 26, set out in Buckley, pp. 554-556, which was passed in consequence of the doubts raised by the Ebbw Vale Co.'s Case, 4 Ch. D. 827; but on this point, see note to s. 42 of the "Companies Act."

pursuance of this Act, and of the "Companies Act" as amended Sect. 4.
by this Act: Provided that where the reduction of the capital
of a company does not involve either the diminution of any
liability in respect of unpaid capital, or the payment to any
shareholder of any paid-up capital :

(1) The creditors of the company shall not, unless the Court
otherwise direct, be entitled to object or required to
consent to the reduction; and

(1) It shall not be necessary before the hearing (a) of the
petition for confirming the reduction to add, and the
Court may, if it thinks it expedient so to do, dispense
altogether with the addition of the words "and
reduced” as mentioned in the "Companies Act."

In any case that the Court thinks fit so to do it may require the
company to publish in such manner, as it thinks fit, the reasons
for the reduction of its capital, or such other information in
regard to the reduction of its capital as the Court may think
expedient with a view to give proper information to the public
in relation to the reduction of its capital by a company, and if
the Court thinks fit, the causes which led to such reduction.
The minute required to be registered in the case of reduction of
capital shall show, in addition to the other particulars required
by law, the amount (if any) at the date of the registration of
the minute proposed to be deemed (b) to have been paid-up on
each share.

(a) Sub-sect. (2) of s. 4 of the corresponding Eng. Act, 40 & 41 Vict. cap. 26, reads, before the presentation," and Buckley, at p. 555, takes the view that these words were used advisedly, and that the object was that "and reduced" should appear in the advertisements required by R. 5 Gen. Order, March, 1868 (R. 67 to the N.S.W. Act). In the London and City Land Co., W.N. (1885) 137, a petition was presented without using the words, and without applying before the hearing to dispense with them, However, it is conceived that the use of the word "hearing" in the N.S.W. Act instead

of " presentation" does away with the
necessity of inserting "and reduced"
in such advertisements.

(b) By s. 47 of the " Companies Act "
of 1874, the minute is to be approved
by the Court, and, therefore, it is to
be presumed that the Court will not
allow an amount "to be deemed to
have been paid-up on a share" if such
amount be not in fact paid-up. A form
of minute approved by Kay, J., In re
West Cumberland Iron and Steel Co.,
W.N. (1888) 54, and followed by North,
J., ib. p. 103, is added in the forms
infra.

In West Cumberland Iron Co., supra, the petition alleged that the proposed reduction did not involve the diminution of liability in respect of unpaid capital, or the payment to any shareholder of paid-up capital; Kay, J., allowed the petition to come on for hearing without any advertisement or