Construction of above sections. Practice. Jurisdiction to enforce the decision of arbitrators. The Building Societies Act, 1874, 8. 34. The above sections are similar to section 20 of "The Friendly Societies Act, 1875," and to section 13 of "The Industrial and Provident Societies Act, 1876," on which some observations will be found on a later page (s). As mentioned in the introductory remarks at the head of this Chapter Order XL. probably is, strictly speaking, applicable to all proceedings under "The Building Societies Act, 1874." And, if this be so, it follows that proceedings under it may be taken either by plaint and summons, or by petition. The mode of conducting proceedings in either of these modes can be ascertained from the Introductory Chapter to the present Book of this Work. Inasmuch, however, as sections 23 and 24 of "The Building Societies Act, 1874," are precisely similar to section 20 of "The Friendly Societies Act, 1875," it will be prudent in proceedings under "The Building Societies Act" against officers of building societies to follow the rules laid down with regard to corresponding proceedings against officers of friendly societies (t) and described in a subsequent page (u). If this course be adopted the proceedings will be commenced by plaint and summons: the summons or particulars annexed thereto, will state the nature of the act required to be done (x), and (if property be required to be delivered up) the nature of such property (y). The subsequent proceedings in the action will, under Order XXXVIII. set out on a later page (2), be the same as in ordinary cases. The form of order at the hearing can be adapted from that under" The Friendly Societies Act" (a). SECTION II.-PROCEEDINGS TO ENFORCE THE DECISION The jurisdiction of the County Courts to enforce the decisions of arbitrators is defined by a section in the terms following: 66 "Where the rules of a society under this Act direct disputes "to be referred to arbitration, arbitrators shall be named and "elected in the manner such rules provide, or, if there be no such provision, at the first general meeting of the society, "none of the said arbitrators being beneficially interested, directly or indirectly, in its funds; of whom a certain "number, not less than three, shall be chosen by ballot in 66 66 "each such case of dispute, the number of the said arbitrators " and mode of ballot being determined by the rules of the society; the names of such arbitrators shall be duly entered "in the minute book of the society, and, in case of the death " or refusal or neglect of any of the said arbitrators to act, the "society, at a general meeting, shall name and elect an "arbitrator to act in the place of the arbitrator dying, or "refusing or neglecting to act; and whatever award shall be "made by the arbitrators or the major part of them, according "to the true purport and meaning of the rules of the society, "shall determine the dispute; and should either of the parties "to the dispute refuse or neglect to comply with or conform "to such award within a time to be limited therein, the Court, upon good and sufficient proof being adduced of such award "having been made, and of the refusal of the party to comply therewith, shall enforce compliance with the same upon the "petition of any person concerned. Where the parties to any dispute arising in a society under this Act agree to refer the "dispute to the registrar, or where the rules of the society "direct disputes to be referred to the registrar, the award of "the registrar shall have the same effect as that of arbitrators." -37 & 38 Vict. c. 42, s. 34. 66 66 section. Before the Court can act under this section, it is necessary Construction (1.) that a valid award shall have been made; and (2.) that of above the party has refused to comply with the award. And it is specially required that the award itself shall limit the time for compliance with its directions. Proceedings under the above section should be commenced Practice. by petition. The mode of instituting and conducting such proceedings can be sufficiently ascertained from the Introductory Chapter to the present Book (bb). SECTION III. PROCEEDINGS TO HEAR AND DETERMINE DISPUTES UNDER "THE BUILDING SOCIETIES ACT." County Court to decide disputes under "The Building Societies Jurisdiction to, in certain specified cases, determine disputes Jurisdiction of under "The Building Societies Act, 1874," is now possessed by the County Courts by virtue of the following enactment :— "The Court may hear and determine a dispute in the follow"ing cases: "1. If it shall appear to the Court, upon the petition Act." "of any person concerned, that application has The Build"been made by either party to the dispute to the ing Societies "other party, for the purpose of having the dispute Act, 1874, "settled by arbitration under the rules of the "society, and that such application has not within "forty days been complied with, or that the arbi VOL. II. (bb) Ante, pp. 886 et seq. 3 R 8. 35. Construction of above section. Practice. -Under subsection 1. -Under subsection 2. No appeal under above section. The Build ing Societies "trators have refused or for a period of twenty-one days have neglected to make any award. "2. Where the rules of the society direct disputes to be "referred to the Court or to Justices."—37 & 38 Vict. c. 42, s. 35. We have already seen (b), that the Act expressly provides that the rules shall specify whether disputes shall be settled by reference to the Court, or to the registrar, or to arbitration. But even where the rules of the society do not direct disputes to be referred to the Court or to Justices, the County Court has jurisdiction in the cases mentioned in sub-section 1 of section 35. The practice under the above section varies according to whether the proceedings are under sub-section 1 or under subsection 2 of the above enactment. Proceedings under sub-section 1 of section 30 of "The Building Societies Act, 1872," are expressly directed to be commenced "by petition." The practice on such a petition can be ascertained by reference to the Introductory Chapter of this Book (c), as supplemented by Order XXXVIII. (d), by which it is expressly directed that the rules of practice in ordinary cases shall apply to points as to which there exists no express direction. In proceedings under section 35, sub-section (2) (e), the dispute should, it is submitted, be referred by action commenced by plaint and summons in the ordinary way, this being the course prescribed in like cases arising under "The Friendly Societies Act, 1875" (f). And the summons or the particulars annexed should state correctly the nature of the dispute referred and the relief which the plaintiff claims (g). The decision of the County Court under section 35 is also final and conclusive, for "The Building Societies Act, 1874," provides that: "Every determination by arbitrators or by the Court or by "the registrar under this Act of a dispute shall be binding and “conclusive on all parties, and shall be final to all intents and purposes, and shall not be subject to appeal, and shall not be " removed or removable into any Court of law, or restrained or "restrainable by the injunction of any Court of equity; pro"vided always, that the arbitrators, or the registrar, or the Court, as the case may be, may, at the request of either party, state a case for the opinion of the Supreme Court of "Judicature on any question of law, and shall have power to 66 (b) Ante, pp. 976, 977. See ante, pp. 886 et seq. (f) See Ord. xxxv. r. 4, post, p. 994. 66 grant to either party to the dispute such discovery, as to "documents and otherwise, as might now be granted by any "Court of law or equity, such discovery to be made on behalf "of the society by such officer of the society as the arbitrators, registrar, or Court may determine."-37 & 38 Vict. c. 42, s. 36. SECTION IV. PROCEEDINGS TO WIND UP A BUILDING SOCIETY. "The Building Societies Act" confers upon the County Court Jurisdiction jurisdiction to wind up any building society which is within as to the the Act. The following is the section by which such jurisdiction is created and defined : "A society under this Act may terminate or be dissolved winding up of building societies. The Build "1. Upon the happening of any event declared by its rules ing Societies "to be the termination of the society. "2. By dissolution in manner prescribed by its rules. "3. By dissolution with the consent of three-fourths of the 66 members, holding not less than two-thirds of the "number of shares in the society, testified by their signatures to the instrument of dissolution. The "instrument of dissolution shall set forth 66 "(a.) the liabilities and assets of the society in 66 "(b.) the number of members, and the amount "(c.) the claims of depositors and other creditors, "(d.) the intended appropriation or division of "the funds and property of the society; "(e.) the names of one or more persons to be "appointed trustees for the special purpose, and their remuneration. "Alterations in the instrument of dissolution may be "made with the like consent, testified in the same "manner. The instrument of dissolution and all altera"tions therein shall be registered in the manner pro"vided for the registration of rules, and shall be "binding upon all the members of the society. "4. By winding up, either voluntarily under the supervision "of the Court or by the Court, if the Court shall so "order, on the petition of any member authorised by "three-fourths of the members present at a general "meeting of the society specially called for the purpose to present the same on behalf of the society, 66 Act, 1874, 8. 32. Semble that a building society can be wound up voluntarily or under the supervision of the Court, as well as compulsorily. Opinion of "or on the petition of any judgment creditor for not "less than fifty pounds, but not otherwise. General "orders for regulating the proceedings of the Court "under this section may be from time to time made "by the authority for the time being empowered to "make general orders for the Court. "Notice of the commencement and termination of every "dissolution or winding up shall be sent to the registrar, and "registered by him."—37 & 38 Vict. c. 42, s. 32. There are, as will be seen in the Chapter on Winding up (h), in general three modes in which a company or society can be wound up; viz., (1) by compulsory winding up; (2) by voluntary winding up; (3) by a voluntary winding up under the supervision of the Court. It is to be noticed that the above section provides that a building society may be wound up "either voluntarily under the supervision of the Court or by "the Court." Still it is perhaps somewhat doubtful whether building societies can be wound up voluntarily. A recent writer on public companies has expressed the opinion that, owing to the language adopted by the Legislature in framing section 32 of "The Building Societies Act, 1874" (i), societies which are within that Act can only be wound up by the Court. His remarks on this section are as follows: : "Upon the wording of this clause it would seem that the words voluntarily under the supervision of the Court' cannot be read disjunctively, and yet if they are not, there does not appear to be any power for such a society to wind up voluntarily in the sense in which that term is used in the Companies Acts, and if that be so, a supervision order, which is an order to continue a voluntary winding up, is impossible. Sub-section 3 of the 32nd section above referred to, gives a power of dissolution with the consent of three-fourths of the members holding not less than two-thirds of the number of shares in the society,' but this, though analogous, is not the same as the power of voluntary winding up given by Companies' Act, 1862, section 129. Industrial and provident societies, had under section 17 of The Industrial and Provident Societies Act, 1862, and have now, under section 17 of the Act of 1876, power to wind up voluntarily, but benefit building societies have been held not to be within The Industrial and Provident Societies Acts. It is conceived that there is a slip in the drafting of the Act, and that it has been forgotten that a supervision order necessarily pre-supposes a voluntary liquidation" (k). (h) See post, Division IV. cap. vii., p. 1119. Buckley on Companies Acts (3rd ed.), p. 181, 182. |