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Creditors or contributories are generally unwilling to make the application as they do not care to run the risk of having to pay the costs if it fails, and the company itself is the party most interested in the scheme being sanctioned.
It seems reasonable to suppose that the omission of any power to the company to make the
application is an accidental omission, for when the company is in liquidation a power is given to the representative of the company, namely, the liquidator, to make the application.
Clause 141, page 78, line 25, leave out “or division.”
It has been suggested (among others, by Mr. Justice Warrington) that it would be a desirable amendment of the law to omit the words “or division.” The effect of these words is that it is possible to apply for a stay of proceedings in the case of an action in the King's Bench Division in that Division, and that a rule to the contrary would be ultra vires. If the words were omitted, the Rule Committee would be able, if they thought fit, to prescribe by rule that the power to stay proceedings in the circumstances referred to in this clause should be exerciseable by the winding-up Judge.
Clause 153, page 85, line 22, leave out “sub-section (3).”
This amendment is consequential on the proposal to leave out the Fourth Schedule to the Bill.
Clause 166, page 91, line 22, after “unlimited ” insert “or to his estate.”
There is, apparently, in section 6 of the Act of 1867 an accidental omission of these words.
That section is an enactment intended to give a right of set-off to a director with unlimited liability, and the section carries this out by means of a reference to the enactment in section 101 of the Act of 1862, which gives the right of set-off to a contributory.
Under section 101 the set-off is allowed to a contributory or his estate, and the section in the later Act appears to have meant to make the allowance not only to the director himself, but also to his estate.
Clause 178, page 95, line 39, after “contributory” insert “ or debtor.”
Section 119 of the Act of 1862, from which this clause is reproduced, applies to proceedings against a contributory or the estate of a contributory, or a debtor of the company, but, by what is, apparently, an accidental omission, does not apply to the estate of a debtor.
Clause 185, page 98, line 35, leave out “its affairs are wound up,” and insert “it is dissolved.”
The words “until its affairs are wound up " are reproduced from section 131 of the Act of 1862, but they appear to be a clerical error for “until it is dissolved.”
The provisions of section 131 of the Act of 1862 are out of harmony with the provisions of sections 142 and 143 of the same Act (reproduced in clause 196 of the Bill). Section 131 provides that a company's corporate state and corporate powers shall continue until its affairs are wound up. Section 142 provides that, as soon as the affairs of a company are “fully wound up,” the liquidators shall call a general meeting of the company, and section 143 provides for dissolution on the expiration of three months from the date of the registration of a return by the liquidator of the meeting having been held.
Thus, sections 142 and 143 make it quite clear that the corporate state of the company continues after its affairs have been wound up, and till a later date, i.e., till it is dissolved.
Clause 193, page 102, line 33, after “ 1845,” insert “or, in the case of a winding-up in “Scotland, the Companies Clauses Consolidation (Scotland) Act, 1845.”
The omission of the Scottish Act in the Companies Act of 1862 would appear to have been inadvertent. The Companies Clauses Consolidation Act, 1845, does not apply to Scotland.
Clause 198, page 104, line 23, after “creditor” insert “ or contributory.”
line 24, after “opinion" insert “in the case of an application by “a creditor.”
line 24, after “creditor” insert “ or in the case of an application by “a contributory, that the rights of the contributories.”
The clause, as drawn, reproduces section 145 of the Act of 1862, and, as there is no mention of “contributory” in section 145 it might have been interpreted to mean that the voluntary winding-up of the company should be a bar to the right of any contributory to have it wound up by the court. The history of the decisions on section 145 shows that, as a matter of fact, the
courts came very near at one time to interpreting the section in that way. (See Gold Co., 11 Ch. D. 701.)
It is, however, now clearly established by the decisions of the courts that the court has jurisdiction on the petition of a contributory to make an order for winding-up if satisfied that the voluntary liquidation will prejudice the contributories. (See re National, &c., Generator, 1902, 2 Ch. 34 at page 40.)
It is suggested that, without the above amendments, clause 198 is misleading.
Clause 203, page 105, line 19, after “court" insert “or any liquidator continued under the “supervision order.”
A liquidator continued under a supervision order is not necessarily appointed by the court, but his appointment comes from the resolution of the shareholders in general meeting.
It appears to be clear law that the court has power to remove a liquidator continued under a supervision order and this power is inferred from sections 141 and 150 of the Act of 1862, or, in the alternative, from sections 151 and 93 of the Act of 1862.
If the words suggested above are not inserted in clause 203, the clause will be misleading in this respect.
Clause 231 (3), page 123, line 15, after “except" insert (“in the case of a winding-up by “the court).”
The insertion of these words is desirable to exclude the possibility of its being argued that the sub-clause only applies in the case of a winding-up by the court.
It is quite clear that the original enactment (section 9 of the Stannaries Act 1887) applies to every kind of winding-up, and without these words the law might be less clear than it is at present.
Clause 284, page 148, line 32, after “licence" insert, “ or revocation of licence.”
Under the Act of 1862 any approval, sanction or licence given or made by the Board of Trade had to be under the hand of a Secretary or Assistant Secretary of the Board. As a matter of departmental convenience, it was desired that power should be given to the President to nominate any officer he thought fit for this purpose, whether he was technically a Secretary or an Assistant Secretary or not. With this end in view, Section 46 of the Act of 1907 declared that “any writing “or licence which, under the Companies Acts, 1862 to 1900, is required to be under the hand of “one of the Secretaries or Assistant Secretaries of the Board of Trade, may be under the hand of “any person authorised in that behalf by the President of the Board of Trade.”
By a previous section of the Act of 1907 (section 42) power was given to the Board of Trade (without any mention of Secretary or Assistant Secretary) to revoke licences granted by the Board of Trade under Section 23 of the Companies Act, 1867, which relates to associations formed for purposes other than gain.
As section 46 is limited to writings or licences which, under the Companies Acts, 1862 to 1900, are required to be under the hand of a Secretary or Assistant Secretary of the Board of Trade, revocations of licences under section 42 are excluded.
It is desirable that the mistake made in the Act of 1907 in this respect should be corrected.
The amendment, is one which concerns only the internal administration of the Board of Trade, and is certainly desirable in the interests of uniformity of practice.
Clause 285, page 150, line 25, leave out from beginning of line to “director” in line 2 of
The definitions of “director” and “prospectus” are the same as those contained in the Act of 1900, but the definitions contained in the Act of 1900 do not extend to the expressions “director” or “prospectus,” when used in any other Act. It has, therefore, been necessary to confine the definitions in this Bill to those parts of the Bill which reproduce the Acts of 1900 and 1907.
It is very desirable that there should be no conflict of meaning as to the words “director” and “prospectus,” and that the definitions contained in the Act of 1900 should be extended to the whole of the statute law relating to joint stock companies.
Fourth Schedule, page 186, leave out the Fourth Schedule.
This schedule is reproduced from the Act of 1890. It deals with meetings of creditors and contributories in England, and Rules have been made by the Lord Chancellor with the concurrence of the President of the Board of Trade which, among other things, deal with the same subject. Thus, part of the Fourth Schedule has become useless because it has been superseded by the Rules. The Fourth Schedule can be at any time modified by the Lord Chancellor with the concurrence of the President of the Board of Trade, and the desirable course appears to be to take out the Fourth Schedule from the statute altogether, and include in the Companies (Winding-Up) Rules such part as is not already in those Rules, which are also made by the Lord Chancellor with the concurrence of the President of the Board of Trade.
LORDS AND MEMBERS PRESENT, AND MINUTES OF PROCEEDINGS AT EACH SITTING OF THE COMMITTEE.
Die Mercurii, 8° Julii 1908.
The Order of Reference is read.
The Title and Preamble of the Bill are read and postponed. The Clauses of the Bill are considered. -
Mr. W. M. Graham-Harrison and Mr. G. S. Barnes are called in ; and Examined. (Vide Minutes of Evidence.)
Ordered, That the Committee be adjourned to Wednesday next at Two o'clock.
Die Mercurii, 15° Julii 1908.
The LoRD CHANCELLOR in the Chair.
Mr. W. M. Graham-Harrison and Mr. G. S. Barnes are again called in; and further Examined. (Wide Minutes of Evidence.)
Further Amendments are made.
BILL (LoRDs). Post of FICE consolidATION BILL (LoRDs). STATUTE LAW REVISION BILL (LoRDs). xi
Die Mercurii, 22° Julii 1908.
The LORD CHANCELLOR in the Chair.
Mr. W. M. Graham-Harrison and Mr. G. S. Barnes are again called in ; and further Examined. (Wide Minutes of Evidence.)
Further Amendments are made.
The Committee are of opinion that the Companies (Consolidation) Bill [H.L.] should be allowed to proceed.
The Committee have considered this Bill, and amended it so that in their opinion it now represents simply the present law.
In the course of their examination of the Bill, some suggestions were made for the purpose of simplifying provisions and of improving or making clear the language of existing Acts. Some slight modifications of the law which would not substantially alter it, and would tend to convenience, were also suggested. The Committee have considered these suggestions, and recommend that the Amendments set out below be made. None of them affect the existing law in any important points; but, as they may affect it in some degree, they can hardly be called verbal Amendments, and have not, therefore, been incorporated in the Bill as now reported to both Houses.
/Amendments referred to above.
Clause 4, page 3, line 1, at end insert, as a new paragraph:—
Clause 4, page 3, line 14, leave out “(subject to increase or reduction in accordance with
“56. A company limited by guarantee and registered on or after the first day of January nineteen hundred and one, may, if it has a share capital, and is so authorised by its articles, increase or reduce its share capital in the same manner and subject to the same conditions in and subject to which a company limited by shares may increase or reduce its share capital under the provisions of this Act.”
Clause 21, page 10, line 12, leave out “whether.”
Clause 30, page 15, line 3, leave out “sitting in chambers.”
Increase reduction share capi in case of company
limited b. guarantee having a