be dissolved from the date of such order, and the company shall Sect. 173. be dissolved accordingly (a). Buckley, p. 280. (a) RR. 62, 63. Forms 54, 55, infra; Cf. ss. 170, 171; and see s. 194, as to voluntary winding-up. As to disposal of Registrar to make minute of dissolution. 170. Any order (a) so made shall be reported by the official liquidator to the Registrar, who shall make a minute accordingly & 26 Vict. c. in his books of the dissolution of such company. 89, s. 112. reporting dissolution. 25 & 26 Vict. c. 89, s. 113. 171. If the official liquidator makes default in reporting to the Penalty on not Registrar, in the case of a company being wound-up by the Court, the order (a) that the company be dissolved, he shall be liable to a penalty not exceeding five pounds for every day during which he is so in default. (a) Cf. 83. 169, 170; RR. 62, 63. Forms 54, 55, infra. 172. Any petition for winding-up a company by the Court Petition to be under this Act shall constitute a lis pendens. Buckley, pp. 280, 281. This section is rendered superfluous by s. 204, as regards the property (including the real estate) of a company; see s. 175, as to the removal, &c., of his goods by a contributory. lis pendens. Extraordinary powers of Court. to summon per of having pro. perty of the company. 173. The Court may, after it has made an order for winding- Power of Court up the company, summon (a) before it any officer (b) of the sons suspected company or person known or suspected to have in his possession any of the estate or effects (b) of the company, or supposed to be indebted to the company, or any person whom the Court may deem capable of giving information concerning the trade, dealings, estate, or effects (c) of the company; and the Court may require any such officer or person to produce any books, papers, deeds, writings, or other documents (b) in his custody or power relating to the company; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the Court at the time appointed, having no lawful impediment (made known to the Court at the time of its sitting Sect. 174. and allowed by it), the Court may cause such person to be By summons. cation of liquidator : apprehended, and brought before the Court for examination (c) ; nevertheless, in cases where any person claims any lien on papers, deeds or writings or documents produced by him, such production shall be without prejudice to such lien, and the Court shall have jurisdiction in the winding-up to determine all questions relating to such lien. Buckley, pp. 281–287. (a) Form 53, infra. (b) Cf. ss. 159, 216. (c) Cf. s. 174. As to solicitor's lien, see Buckley, pp. 278, 286. A person is brought before the Court under this section by summons, in accordance with Form 53, and not by ordinary subpœna: In re Gold Co., 12 Ch. Order on appli. Div. 77; application is ex parte, and, when made by the liquidator, not made on affidavit, ib.; a contributory, however, who may also set the Court in motion, must come on notice to the liquidator; and the Court will be slow to interfere on appeal with the discretion of the Primary Judge who has ordered an examination, ib. ; even if the party ordered to attend has any locus standi to appeal, which it appears by the same case he has not. A plaintiff in an action against the company which is being continued, canuot, therefore, escape examination, or refuse to answer questions relating to the matter in dispute : e.p. Bateman, 15 L.T. 263, 495. The witness is entitled to have solicitor and counsel present: In re Breach Loading Armoury Co., 4 Eq. 453. of contributory. Examination before the Court. 25 & 26 Vict. c. 89, s. 117. Power to arrest absconding contributory. 25 & 26 Vict. c. 89, s. 118. The powers given by this section for the examination of directors were given for the more beneficial winding-up of the company, and ought not to be used merely to give a plaintiff, in an action to enforce his individual right, undue means of discovery: In re Imperial Continental Water Corp., 33 Ch. Div. 314; cf. In re London, &c., Paper Mills Co., W.N. (1888) 63, where an order under this section obtained by a contributory for the purpose of examining a director against whom he had commenced an action was discharged. 174. The Court may examine upon oath, either by word of mouth or upon written interrogatories, any person appearing or brought before them in manner aforesaid (a) concerning the affairs, dealings, estate, or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same. (a) s. 173. 175. The Court may, at any time before or after it has made an order for winding-up a company, upon proof being given that there is probable cause for believing that any contributory (a) to such company is about to quit the colony (A) or otherwise abscond, or to remove or conceal any of his goods or chattels, for the purpose of evading payment of calls, or for avoiding Sect. 178. examination in respect of the affairs of the company, cause such contributory to be arrested, and his books, papers, moneys, securities for moneys, goods, and chattels (b) to be seized, and him and them to be safely kept until such time as the Court may order. Buckley, pp. 288, 289. (A) Eng. Act reads-" United Kingdom." (a) s. 126. cumulative. 89, s. 119. 176. Any powers by this Act conferred on the Court shall be Powers of Court deemed to be in addition to and not in restriction of any other 25 & 26 Vict. c. powers (A) subsisting, either at law or in equity, of instituting proceedings against any contributory, or the estate of any contributory, or against any debtor of the company, for the recovery of any call or other sums due from such contributory or debtor, or his estate, and such proceedings may be instituted accordingly. (A) English Act reads-" power subsisting." Enforcement of and Appeal from Orders. force orders. 89, s. 120. 177. All orders made by the Court under this Act may be Power to enenforced in the same manner in which orders of the Supreme 25 & 26 Vict. c. Court made in any suit pending therein in its equity jurisdiction (a) may be enforced. The Eng. Act adds provisions as to the Vice-Warden of the Stannaries. (a) "Equity Act, 1880," R.R. 176, 177 (with which ef. R. 167) provide the process for enforcing decrees and orders in the equity jurisdiction: q.v. orders. 89, s. 124. 178. Rehearings of and appeals from any order or decision Appeals from made or given in the matter of the winding-up of a company by 25 & 26 Vict. c. the Court constituted or consisting of the said Primary Judge in Equity (A) may be had, and when made or had shall be made or had within the same time and (B) in the same manner and subject to the same conditions in and subject to which appeals may be had Sect. 179. from any order or decision of the said Primary Judge (c) in cases within his (D) ordinary jurisdiction (E). Affidavits, &c.. may be sworn before certain persons. 25 & 26 Vict. c. Buckley, pp. 291-296. (A) Eng. Act reads-" any Court hav- (B) Id. omits" and when-time and." (D) Id. "its." (E) Id. further enacts the amount of notice to be given, and makes certain provisions in the case of the Stannaries. be See ss. 70-79, "Equity Act, 1880," Walker, pp. 59-67. RR. 183-185, ib. pp. 140, 141; but by R. 60, Reg. Gen., Sept., 1889, notices under RR. 183, 184, may signed by one counsel. Rehearing in the corresponding Eag. section has been held to mean by way of appeal, and probably does so in the N.S.W. section, as by s. 71 "Equity Act, 1880," all appeals are by way of rehearing. 179. Any affidavit, affirmation, or declaration required to be sworn or made under the provisions or for the purposes of this 89, s. 128. part of this Act may be lawfully sworn or made in Great Britain or Ireland, or in any colony, island, plantation or place under the dominion of Her Majesty (A), before any Court, Judge, or person lawfully authorised to take and receive affidavits, affirmations, or declarations, or before any of Her Majesty's Consuls or Vice-Consuls, in any foreign parts out of Her Majesty's dominions, and all Court (B) Judges, Justices, Commissioners, and persons acting judicially, shall take judicial notice of the seal or stamp or signature (as the case may be) of any such Court, Judge, person, Consul, or Vice-Consul attached, appended, or subscribed to any such affidavit, affirmation, or declaration, or to any other document to be used for the purposes of this part of this Act. Circumstances under which company may be wound up voluntarily. 25 & 26 Vict. c. 89, s. 129. (A) Eng. Act adds—“ in foreign parts." (B) Sic. Eng. Act "Courts." Voluntary winding-up of Company. 180. A company under this Act (a) may be wound-up voluntarily (1) Whenever the period, (if any), fixed for the duration of the company by the articles of association expires, or whenever the event, (if any), occurs, upon the occurrence of which it is provided by the articles of association that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound-up voluntarily : (2) Whenever the company has passed a special resolution Sect. 182. resolution (c) to the effect that it has been proved to For the purposes of this Act any resolution shall be deemed to be extraordinary which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as herein before defined (b). Buckley, pp. 298-300. (a) See s. 243 (2) as to an unregistered company, and note in Buckley, pp. 406-411. (b) ss. 83, 85, as to registration, and s. 183 as to advertisement of special resolutions. (c) See also ss. 83, 183. On the question of notice, see s. 83 and note thereto. Whether the Court has jurisdiction to interfere to restrain a company from passing resolutions for a voluntary winding-up, at the instance of persons not shareholders, quære: British Water Gas Syndicate v. Notts, &c., Water Gas Co., W.N. (1889) 204. of voluntary 181. A voluntary winding-up shall be deemed to commence at Commencement the time of the passing of the resolution authorising such winding-up. winding-up (a). Buckley, pp. 300, 301. (a) s. 137, as to winding-up by the Court. Where a petition was presented for the compulsory winding-up of a company, and the same day a provisional liquidator was appointed, and afterwards the company passed an extraordinary resolution to wind-up voluntarily, it was held that the winding-up commenced from the passing of the resolution, not from the appointment of the provisional liquidator, and that the Court had no power to alter the date of commencement: In re West Cumberland Iron and Steel Co., 40 Ch. D. 361; and see In re Dry Docks Corporation of London, 39 Ch. Div. 306. As to commencement of winding-up under supervision, see s. 198; and where a compulsory order supersedes the supervision order, see s. 203. 25 & 26 Vict. c. 89, s. 130. tary winding. up. 182. Whenever a company is wound-up voluntarily, the Effect of voluncompany shall, from the date of the commencement of such winding-up (a), cease to carry on its business, except in so far as may be required for the beneficial winding-up thereof (b), and 25 & 26 Vict. c. 89, s. 131. |