Sales by Liquidator.

liquidator.

Upon the application of the liq. of co. that certain sales already made Form 595. by him of stock and machinery should be sanctioned and that he should Order sanctionbe at liberty, with the sanction of the creditors' representative, to make ing sales by such sale and transfer as hereinafter mentioned, and upon hearing the solicitors for the applicant and for M. the creditors' representative, and upon reading an order dated 23 Nov. 1877, an affidavit, &c., Order that the said sales already effected by the said liquidator and the particulars whereof are expressly set out in the said affidavit be and the same are hereby sanctioned; And Let the said liquidator be at liberty, subject to the approval of the creditors' representative first being obtained, to sell the whole of the company's stock, plant, machinery, and effects by private contract in one or more parcel or parcels and for such price or prices as he may think it advisable to take; And also with the like approval to transfer the lease of the company's business premises at

if he should find any one willing to take a transfer thereof, whether for a valuable consideration or not. Japanese Curtains Co., Malins, V.-C., 26 January, 1878. A. 1547.

The liquidator has power, under s. 133 (7) and s. 95 of the Act, to sell the property of the company. Great care should be taken in preparing the conditions of sale, and a reserved price should be fixed. Applications to the court to sanction sales are not uncommon.

If thought desirable in any case, an order can be obtained for sale, with the approval of the judge, in which case the sale will be carried out by the court. See supra, p. 380.

Conveyances by Liquidator.

THIS INDENTURE made the

day of

of freeholds.

-, 1880, between The Form 596. A. Company Limited (hereinafter called the company) of the first part, Conveyance of B. the liquidator of the company of the second part, and C. of the third part. WHEREAS by special resolution of the company duly passed and confirmed at extraordinary general meetings of the members thereof held respectively on the day of and the day of

it was resolved that the company should be wound up voluntarily and that the said B. should be and he was thereby appointed liquidator for the purposes of such winding up; AND WHEREAS the company is seised of the hereditaments hereinafter described and intended to be hereby assured for an estate of inheritance in fee simple in possession free from incumbrances; AND WHEREAS the said B. as such liquidator as aforesaid hath agreed with the said C. for the sale to him of the said hereditaments at the price ofl.:

NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the sum of -7. upon the execution hereof paid by the said C. to the said B. as such liquidator as aforesaid (the receipt whereof the said B. as such liquidator doth hereby

Form 596. acknowledge) the company by the direction of the said B. as such liquidator doth hereby grant unto the said C. his heirs and assigns; All and singular [parcels, general words, estate clause]; To Have and to Hold the same unto and to the use of the said C. his heirs and assigns; And the said B. doth hereby [usual covenant against incumbrances].

In Witness whereof the said B. as such liquidator as aforesaid hath caused the common seal of the company to be hereunto affixed and the other parties hereto have hereunto set their hands and seals the day and year first above written.

The common seal of the A. Company Limited was affixed
hereto by C., liquidator.

(L.S.)

Form 597. Resolutions.

The company's property does not vest in the liquidator, and accordingly assurances should be made in the company's name. See s. 133 (7) and s. 95 of the Act. Some persons make the company grant or assign, and the liquidator "confirm," but there is no need to do this. The liquidator usually covenants against incumbrances.

It is not usual for a company which is being wound up to give covenants for title, and conditions of sale generally stipulate that no covenant shall be required except the liquidator's covenant against incumbrances.

Compromises.

Section 160 of the Act empowers the liquidator, with the sanction of an extraordinary resolution, [supra, p. 446] to make compromises. And he can call the requisite meeting under s. 139 of the Act. But in many cases it is considered preferable to apply for the sanction of the court, under ss. 138, 160, especially where it is desired to compromise with a contributory. Where a compromise is proposed, the liquidator sometimes (1) makes a provisional agreement for compromise, and then calls a meeting or applies to the court to sanction the same; or (2) calls a meeting or applies to the court to sanction a compromise upon terms specified or referred to in the notice or summons, and after obtaining the requisite sanction enters into the agreement. If the court is asked to sanction a compromise, evidence that the compromise is beneficial must be forthcoming. Supra, p. 446.

In the case of a compromise with a contributory, the liquidator, after taking out the summons for liberty to compromise, generally requires the contributory to make an affidavit as to his means (supra, p. 447), and if necessary cross-examines him on it. See supra, pp. 439, 448.

Remuneration of Liquidator.

That the remuneration of the said liquidator for his services in the winding up be fixed at the sum of [100].

Or at the sum of -l. per annum, or at the sum of [two] guineas per day of eight hours for his own time and one guinea per day of eight hours for his clerk's time, or at a sum equal to two per cent. of the amount of the assets divided among the unsecured creditors and members of the company.

That the remuneration of the said liquidators be paid at two guineas Form 598. each for every day occupied by them in the winding up, together

with all costs, charges, and expenses incurred by them in and about

such winding up.

That the liquidator shall be remunerated for the services of himself Form 599. and his clerks in accordance with the scale usually adopted by the High Court of Justice in fixing the remuneration of official liquidators.

By subsec. (3) of s. 133 of the Act of 1862, the company, in general meeting, is empowered to fix the remuneration of the liquidators. See also s. 144, infra, note to Form 601, as to the priority given thereto.

Sometimes, as already mentioned, [supra, p. 469] the remuneration is fixed at the meeting at which the liquidators are appointed, and the above are examples of resolutions so passed. But in many cases the remuneration is not fixed until some subsequent period, e.g., at one of the annual meetings or at the final meeting.

There are advantages in fixing the remuneration upon the appointment of the liquidators, because the rights of the liquidators are thereby clearly determined, but it must be borne in mind that if a high rate is fixed in the case of an insolvent company, creditors will have cause to complain.

By the joint effect of s. 138 & 93 of the Act, the court, if applied to, can fix the remuneration of the liquidator, and applications for this purpose are not uncommonly made. All questions as to the propriety of the amount are thereby avoided, and in the case of an insolvent company this course seems peculiarly desirable.

The following is an example of an order:

Upon the petition of H. of, &c., and J. of, &c., preferred unto this Form 600. court and upon hearing counsel for the petitioners and for the respon- Order as to dents and upon reading the said petition, By consent order that, without remuneration of liquidator. prejudice to any question, it be referred to chambers to fix the amount of remuneration proper to be allowed and paid to S., C., and H. the present liquidators of the said co., And order that it be referred to the taxing master to tax the bill of costs of Messrs. L. and L. the solicitors of the respondents, delivered to the said liquidators of and relating to the winding up of the said co., And order that the rest of the said petition do stand over. London Paper, &c., Co., Malins, V.-C., 1 Feb. 1878. B. 311.

On the part of

Taxation of Costs.

Formal parts: see infra, Form 606.

the liquidator of the above-named company that Form 601. it may be referred to the proper taxing master to tax as between solici- Summons to tor and client the costs, charges, and expenses of the applicant as volun- tax costs. tary liquidator of the above-named company since his appointment on the

of

up to the

of

Section 144 of the Act of 1862 provides that "All the costs, charges, and expenses properly incurred in the voluntary winding up of a company, including the re

Form 601. muneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims."

Form 602.

Order to bring an account of liquidator.

But this section does not give priority over mortgagees and others having specific security on the assets at the commencement of the winding up, except so far as the liquidator's costs are costs of preservation or realisation, of which the mortgagees have had the benefit. Regent's Canal Ironworks Co., ex parte Grissell, 3 C. Div. 411, supra, p. 373.

As the costs of winding up form a first charge, the liquidator can from time to time make payments on account. In most cases the liquidator pays the solicitor's bill without taxation, but he should remember that he may at any time be called on to bring in his account, and if he has overpaid the solicitor, may be held responsible for the difference. Accordingly, in some cases, the solicitor gives the liquidator an undertaking that if he should at any time be disallowed any part of the bill, the amount shall be refunded. Occasionally the parties think it more prudent to get the bill taxed before payment. In order to obtain taxation, a summons should be taken out under s. 138 of the Act as above. The liquidator is not personally responsible to his solicitor for the costs of the winding up. Trueman's Estate, 14 Eq. 278; In re Massey, 9 Eq. 367.

Accounts of Liquidator.

Upon the application of M. the off. liq., &c., and upon hearing the solicitors for the petitioners and for the said off. liq. and for H. the late voluntary liq. of the said co. and the said H. hereby submitting to the jurisdiction and upon reading an order dated 25 July, 1876; It is by consent of the said H. ordered that the said H. do forthwith or within 7 days after service upon him of this order, lodge in the chambers of the judge his account of receipts and disbursements on behalf of the said co. as such voluntary liquidator. Manor Silkstone Coal Co., Malins, V.-C., 19 March, 1877. B. 623. See also Form 604, post.

The above order was made in a case, a voluntary winding up was superseded by a compulsory order, but the court can at any time, upon an, application under s. 138 of the Act, order the liquidator to bring in and vouch his account. The proceedings upon the order are like those in a compulsory winding up, supra, p. 366. However, such orders are only made in special circumstances, e.g., upon the liquidator's application, or where improper conduct is shown.

Under s. 139 of the Act, the liquidator is to convene a meeting of contributories every year, and submit an account thereto. See also s. 142 as to the final account.

Form 603.

Order removing liquidator.

Removal of Liquidators.

Upon the petition of K. of preferred, &c., and upon reading, &c., and it appearing from the affidavit of the said K. that J. the liquidator of the said co. is out of the jurisdiction and this court dispensing with service of the said petition upon the said co., Let the said J. the liquidator of the said co. be removed from his office of liquidator of the said co., And appoint the petitioner K. to be liquidator of the said co. in the place of the said J., And Let the said J. deliver up to the said K. all the property, cash, books of account, and papers in his possession belonging to the said co. Main Printing, &c., Co., Hall., V.-C., 13 Dec. 1878. B. 2171.

Upon motion, &c., Let C. & B. be respectively removed from being Form 604. liquidators of the said co., And Let some proper person or persons be Another. appointed to act in their stead as liquidators in the winding up of the said co., And order that the said C. & B. do render their final account as such liquidators and do deliver over to such new liquidator or liquidators all property, books, and documents of the said co. in their custody, possession, or power, And Let the costs of the applicants and

of this motion be taxed and paid out of the assets of the said co., And Let the said C. and B. bear their own costs of the said motion. Devonshire Silkstone Coal Co., Malins, V.-C., 13 Mar. 1878. A. 575. This order was reversed on appeal, W. N. 1878, 173.

As to removal of liquidators, see s. 141 of the Act of 1862; Buckley, 264; Sir John Moore Co., 12 C. Div. 326; and supra, p. 374.

Meetings.

S. 139 of the Act empowers the liquidators to summon general meetings for the Meetings. purpose of obtaining the sanction of the company by special or extraordinary resolution, or for any other purposes they think fit, and also requires annual meetings to be held. The meetings should be convened by notice, in accordance with the regulations of the company.

day of

188-, at

of the clock in the

noon,

Let all parties concerned attend at my chambers [slate where] onday the on the hearing of an application [by special leave] on the part of C. of , the liquidator [or D. of, a contributory] of the above-named company that [state the object of the application].

Dated this

day of

188-.

Vice-Chancellor.

or

George Jessel, Master of the Rolls.