Page images

Circumstances under which company may be

wound-up volun

tarily (c).

pended 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.

(b) See 12 & 13 Vict. c. 108, s. 24.

Voluntary Winding-up of Company.

129. A company under this act may be woundup voluntarily (d),

(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 dis-
solved, and the company in general meet-
ing has passed a resolution requiring the
company to be wound-up voluntarily;
(2.) Whenever the company has passed a special
resolution (e), requiring the company to
be wound-up voluntarily;

(3.) Whenever the company has passed an ex-
traordinary resolution to the effect that it
has been proved to their satisfaction that
the company cannot by reason of its lia-
bilities continue its business, and that it is
advisable to wind-up the same:

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 hereinbefore defined (ƒ).

(c) See 19 & 20 Vict. c. 47, s. 102, which did not contain

pl. 3.

(d) See sects. 79, 80, ante, pp. 99, 100. The jurisdiction of the Court of Chancery to adjudicate upon a disputed claim against a company under the operation of a voluntary winding-up remains. Lowndes v. Garnett, &c. Gold Mining Company (Limited), 31 L. J., Ch. 451.

(e) The mode of passing a special resolution is prescribed by the 51st section, ante, p. 53.

Where it is the intention to appoint liquidators at the same meeting at which the resolution is passed for winding-up, the

notice of the meeting should specify that such is one of its
objects, in order to avoid any question as to the validity of
the appointment of the official liquidators. Anglo-Californian
Mining Company v. Lewis, 6 H. & N. 174; 30 L. J., Exch. 50.
See Table A. second schedule to this act, pl. 10, post.
(f) See sect. 51, ante, p. 53.

130. A voluntary winding-up shall be deemed to Commencecommence at the time of the passing of the resolu- ment of tion authorizing such winding-up.

(g) See 19 & 20 Vict. c. 47, s. 64.

voluntary windingup (g).


131. Whenever a company is wound-up volun- Effect of tarily, the company shall, from the date of the com- voluntary mencement of such winding-up, cease to carry on on status of its business, except in so far as may be required for company (h). the beneficial winding-up thereof, and all transfers of shares, except transfers made to or with the sanction of the liquidators, or alteration in the status of the members of the company taking place after the commencement of such winding-up, shall be void, but its corporate state and all its corporate powers shall, notwithstanding it is otherwise provided by its regulations, continue until the affairs of the company are wound-up (i).

(h) See 19 & 20 Vict. c. 47, s. 104.

(i) See sects. 142, 143.


132. Notice of any special resolution or extraor- Notice of dinary resolution passed for winding-up a company to wind-up voluntarily shall be given by advertisement as re- volunspects companies registered in England in the Lon- tarily (*). don Gazette, as respects companies registered in Scotland in the Edinburgh Gazette, and as respects companies registered in Ireland in the Dublin Gazette.

(k) See 19 & 20 Vict. c. 47, s. 103.

quences of voluntary

133. The following consequences shall ensue upon Consethe voluntary winding-up of a company: (1.) The property of the company shall be ap. windingplied in satisfaction of its liabilities pari passu, and, subject thereto, shall, unless it be otherwise provided by the regula

up (7).

tions of the company, be distributed amongst the members according to their rights and interests in the company;

(2.) Liquidators shall be appointed for the purpose of winding-up the affairs of the company and distributing the property;

(3.) The company in general meeting (m) shall appoint such persons or person as it thinks fit to be liquidators or a liquidator, fix the remuneration to be paid

and may

to them or him (n);

(4.) If one person only is appointed, all the provisions herein contained in reference to several liquidators shall apply to him ; (5.) Upon the appointment of liquidators all the power of the directors shall cease, except in so far as the company in general meeting or the liquidators may sanction the continuance of such powers;

(6.) When several liquidators are appointed, every power hereby given may be exercised by such one or more of them, as may be determined at the time of their appointment, or in default of such determination by any number not less than two;

(7.) The liquidators may, without the sanction of the court, exercise all powers by this act given to the official liquidator (o); (8.) The liquidators may exercise the powers hereinbefore given to the court of settling the list of contributories of the company, and any list so settled shall be prima facie evidence of the liability of the persons named therein to be contributories; (9.) The liquidators may at any time after the passing of the resolution for winding-up the company, and before they have ascertained the sufficiency of the assets of the company, call on all or any of the contributories for the time being settled on

the list of contributories to the extent of their liability to pay all or any sums they deem necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and the liquidators may in making a call take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same; (10.) The liquidators shall pay the debts (p) of the company, and adjust the rights of the contributories amongst themselves.

(1) See 19 & 20 Vict. c. 47, s. 104.

(m) A deed of settlement of a company completely registered under 7 & 8 Vict. c. 110, contained a clause, "that no other business shall be transacted at a special general meeting than the business for which it shall have been expressly called." The company was afterwards registered under 19 & 20 Vict. c. 47. After the passing of the act 20 & 21 Vict. c. 14, at a general meeting, it was resolved that the company should be wound-up voluntarily, and liquidators were appointed. The meeting was held in pursuance of the notice, which, however, did not state the intention of the company to appoint liquidators at that meeting. In an action to recover calls made by the liquidators so appointed, it was held, that the clause in the deed applied to a meeting held for the purpose of appointing liquidators, and that no notice of the intention to appoint liquidators having been given, their appointment was invalid. Anglo-Californian Gold Mining Company v. Lewis, 6 H. & N. 174; 16 Jur. N. S. 1376; 9 W. R. 126.

(n) See sects. 135, 140, 141.

(o) See sects. 95, 138, 139, 159, 160. (p) See sect. 95, ante, p. 111.

on share


134. Where a company limited by guarantee, Effect of and having a capital divided into shares, is being winding-up wound-up voluntarily, any share capital that may capital of not have been called up shall be deemed to be assets limited by of the company, and to be a specialty debt due from guarantee(q). each member to the company to the extent of any sums that may be unpaid on any shares held by

Power of

company to delegate

appoint liquidators.

him, and payable at such time as may be appointed by the liquidators.

(q) See sect. 9, ante, p. 17; s. 90, ante, p. 109.

135. A company about to be wound-up voluntarily, or in the course of being wound-up volunauthority to tarily, may, by an extraordinary resolution, delegate (r) to its creditors, or to any committee of its creditors, the power of appointing liquidators or any of them, and supplying any vacancies in the appointment of liquidators, or may by a like resolution enter into any arrangement with respect to the powers to be exercised by the liquidators, and the manner in which they are to be exercised; and any act done by the creditors, in pursuance of such delegated power, shall have the same effect as if it had been done by the company (s).

Appointment of official liquidators.

when binding

(r) See sects. 140, 141, post, p. 176.

(s) A voluntary winding up of a company was proceeding, with the concurrence of a majority of the shareholders, when one of them being dissatisfied presented a winding-up petition. Under the circumstances, the court acting on the 2nd and 3rd sections of the 21 & 22 Vict. c. 60, appointed an official assignee to act as liquidator, chosen under the voluntary winding-up. Ex parte Turner, Re Llanfyrnach Silver Lead Mining Company, 9 W. R. 500-Goulburn, Com.

Arrangement 136. Any arrangement entered into between a on creditors company about to be wound-up voluntarily, or in the course of being wound-up voluntarily, and its creditors, shall be binding on the company if sanctioned by an extraordinary resolution (t), and on the creditors if acceded to by three-fourths in number and value of the creditors, subject to such right of appeal as is hereinafter mentioned (u).

Power of creditor or

contributory to appeal.

[blocks in formation]

137. Any creditor or contributory (x) of a comthat has in manner aforesaid entered into any pany arrangement with its creditors may, within three weeks from the date of the completion of such

« EelmineJätka »