in general meeting, or the liquidators, may sanction the (6.) When several liquidators are appointed, every power (7.) The liquidators may, without the sanction of the court, exercise all powers by this Act given to the official liquidator. (a) (8.) The liquidators may exercise the powers herein before given to the court of settling the list of contributories of the company, and any list so settled shall be primâ 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 of the company, and adjust the rights of the contributories amongst themselves. capital where 134. Where a company, limited by guarantee, and having a Effect on share capital divided into shares, is being wound-up voluntarily, any company limited share capital that may not have been called up shall be deemed by guarantee. to be assets of the company, and to be a specialty debt due from each member to the company to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the liquidators. appoint liqui 135. A company about to be wound-up voluntarily, or in the Delegation of course of being wound-up voluntarily, may, by an extraordinary authority to resolution, delegate to its creditors, or to any committee of its dators. 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 (a) See sect. 95, ante, p. 87. Arrangement. Appeal. Application to court. Liquidators may call general meetings. Vacancy in liquidators. 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. 136. Any arrangement entered into between a 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, 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. 137. Any creditor or contributory of a company that has in manner aforesaid entered into any arrangement with its creditors, may, within three weeks from the date of the completion of such arrangement, appeal to the court against such arrangement, and the court may thereupon, as it thinks just, amend, vary, or confirm the same. 138. Where a company is being wound-up voluntarily the liquidators, or any contributory, may apply to the court to determine any question arising in the matter of such winding-up, or to exercise, as respects the enforcing of calls, or in respect of any other matter, all or any of the powers which the court might exercise if the company were being wound-up by the court; and the court may make such order as it thinks just. 139. Where a company is being wound-up voluntarily the liquidators may, from time to time, during the continuance of such winding-up, summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution, or extraordinary resolution, or for any other purposes they think fit; and, in the event of the winding-up continuing for more than one year, the liquidators shall summon a general meeting of the company at the end of the first year, and of each succeeding year from the commencement of the winding-up, or as soon thereafter as may be convenient, and shall lay before such meeting an account showing their acts and dealings, and the manner in which the winding-up has been conducted during the preceding year. 140. If any vacancy occurs in the office of liquidators appointed by the company, by death, resignation, or otherwise, the company in general meeting may, subject to any arrangement they may have entered into with their creditors, fill up such vacancy; and a general meeting for that purpose may be convened by the continuing liquidators, if any, or by any contributory of the company, and shall be deemed to have been duly held, if held in manner prescribed by the regulations of the company, or in such other manner as may, on application by the continuing liquidators, if any, or by any contributory of the company, be determined by the court. 141. If from any cause whatever there is no liquidator acting Power of court to appoint liquiin the case of a voluntary winding-up, the court may, on the dators. application of a contributory, appoint a liquidator or liquidators : the court may also, on due cause shown, remove any liquidator, and appoint another liquidator to act in the matter of a voluntary winding-up. account. 142. As soon as the affairs of the company are fully wound- Liquidators' up, the liquidators shall make up an account showing the manner in which such winding-up has been conducted, and the property of the company disposed of; and thereupon they shall call a general meeting of the company for the purpose of having General the account laid before them, and hearing any explanation that meeting. may be given by the liquidators: the meeting shall be called by advertisement, specifying the time, place, and object of such meeting; and such advertisement shall be published one month at least previously to the meeting, as respects companies registered in England, in the London Gazette. 143. The liquidators shall make a return to the registrar of Liquidators to such meeting having been held, and of the date at which the report meeting. same was held, and on the expiration of three months from the date of the registration of such return the company shall be deemed to be dissolved; if the liquidators make default in making such return to the registrar they shall incur a penalty not exceeding 51. for every day during which such default continues. 144. All costs, charges, and expenses properly incurred in the Costs. voluntary winding-up of a company, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims. 145. The voluntary winding-up of a company shall not be a Saving of rights bar to the right of any creditor of such company to have the of creditors. same wound-up by the court, if the court is of opinion that the rights of such creditor will be prejudiced by a voluntary winding up. voluntary 146. Where a company is in course of being wound-up volun- Court may adopt tarily, and proceedings are taken for the purpose of having the proceedings of same wound-up by the court, the court may, if it thinks fit, not- winding-up. withstanding that it makes an order directing the company to be wound-up by the court, provide in such order or in any other order for the adoption of all or any of the proceedings taken in the course of the voluntary winding-up. Winding-up subject to the Supervision of the Court. 147. When a resolution has been passed by a company to Court may wind-up voluntarily, the court may make an order directing that direct windingup subject to supervision. Petition. Wishes of creditors. Additional liquidators. Effect of order. Dispositions Books to be Inspection of books and papers. Assignee may sue. the voluntary winding-up shall continue, but subject to such supervision of the court, and with such liberty for creditors, contributories, or others, to apply to the court, and generally upon such terms and subject to such conditions as the court thinks just. 148. A petition, praying wholly or in part that a voluntary winding-up should continue, but subject to the supervision of the court, shall, for the purpose of giving jurisdiction to the court over actions, be deemed to be a petition for winding-up the company by the court. 149. The court may have regard to the wishes of the creditors or contributories. [The greater part of this section is identical with sect. 91, ante, p. 86.] 150. Power to the court to appoint additional liquidators in winding-up subject to supervision. 151. Where an order is made for a winding-up subject to the supervision of the court, the liquidators appointed to conduct such winding-up may, subject to any restrictions imposed by the court, exercise all their powers, without the sanction or intervention of the court, in the same manner as if the company were being wound-up altogether voluntarily; but, save as aforesaid, any order made by the court for a winding-up, subject to the supervision of the court, shall for all purposes be deemed to be an order of the court for winding-up the company by the court. Supplemental Provisions. 153. Dispositions, transfers, &c., made between the commencement of the winding-up and the order for winding-up, shall, unless the court otherwise orders, be void. 154. Where any company is being wound-up, all books, accounts, and documents of the company and of the liquidators shall, as between the contributories of the company, be primâ facie evidence of the truth of all matters purporting to be therein recorded. 155. As to disposal of books, accounts, and documents of wound-up company. 156. Where an order has been made for winding-up a company by the court, or subject to the supervision of the court, the court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just; and any books and papers in the possession of the company may be inspected by creditors or contributories, in conformity with the order of the court, but not further or otherwise. 157. Any person to whom any thing in action belonging to the company is assigned under this Act, may bring or defend any action relating to such thing in action in his own name. 158. In the event of any company being wound-up under this Debts provable. Act, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. (a) 159 and 160. Power to the liquidators, with the sanction of Compromise. the court, where the company is being wound-up by the court, or subject to the supervision of the court, and with the sanction of an extraordinary resolution of the company where the company is being wound-up altogether voluntarily, to pay any classes of creditors in full (b), or make compromises with creditors or claimants, and to compromise calls and debts and questions relating to the assets of the company and the winding-up of the company. another company. 161 and 162. As to transfer to another company of the whole Transfer to or a portion of the business or property of a company in course of being wound-up voluntarily, and as to taking shares of such other company in payment therefor. 163. Where any company is being wound-up by the court, or Executions. subject to the supervision of the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the windingup shall be void to all intents. (c) 164. Extension of the bankruptcy doctrine of fraudulent preference to companies being wound-up under this Act. 165. Power of court to assess damages against delinquent directors and officers. books. 166. If any director, officer, or contributory of any company Falsification of wound-up under this Act destroys, mutilates, alters, or falsifies any books, papers, writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belonging to the company with intent to defraud or deceive any person, every person so offending shall be deemed to be guilty of a misdemeanour, and upon being convicted shall be liable to imprisonment for any term not exceeding two years, with or without hard labour. 167. Where any order is made for winding-up a company by Delinquent (a) See 38 & 39 Vict. c. 77, s. 10, post, Part II. (b) See the Companies Act, 1883, post. (c) Unless such execution, &c., shall be enforced by leave of the court: (Re Exhall Mining Company, 10 Jur. N. S. 576; Re Oak Pits Colliery Company Limited, 47 L. T. 7.) directors. |