Scottish Court of Session Decisions

On the 15th November 1888 a petition was presented to the Court by Thomas Aitken and others, creditors, directors, and shareholders of the Leith Heritages Company (Limited), praying for the winding-up of the said company by the Court. On 16th November the Court ordered intimation service, and advertisement, and appointed Mr Molleson, C.A., provisionally official liquidator of the estate and effects of the company. The petition was thereafter intimated, served, and advertised in terms of the interlocutor.

On 29th November an extraordinary general meeting of the company was held, at which the following extraordinary resolutions were passed:—“(1) That it has been proved to the satisfaction of the Leith Heritages Company (Limited) that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same. (2) That the Leith Heritages Company (Limited) be wound up voluntarily.” Further resolutions were also passed as follows—“(1) That the meeting proceed to appoint a liquidator for the purpose of winding-up the affairs of the company, and distributing the property thereof in terms of the Companies Act 1862, and the Acts amending and extending the same. (2) That John Frederick Moffatt, chartered accountant, Edinburgh, be and is hereby appointed liquidator of the said company. (3) That it be an instruction to the liquidator to apply or concur in applying to the Court of Session to have the voluntary liquidation of the said company continued subject to the supervision of the Court. (4) That a com-mittee of shareholders be appointed to advise with the liquidator in relation to all matters or questions arising in the liquidation, and that the following gentlemen be and are hereby appointed a committee accordingly, viz., Thomas Aitken, Esquire, residing at No. 5 Grosvenor Crescent, Edinburgh; Robert Clark, Esquire, printer, Edinburgh; and James Macdonald, Esquire, Solicitor in the Supreme Courts of Scotland, Edinburgh.”

Following on these resolutions Mr Moffat, the liquidator appointed at the meeting on 29th November, presented a note in the process under the petition, in which, after setting forth the facts above narrated, he craved the Court, inter alia, to order the voluntary winding-up to Be continued subject to the supervision of the Court, to recall the appointment of Mr Molleson, and to confirm his appointment as liquidator.

By section 147 of the Companies Acts 1862 it is provided—“When a resolution has been passed by a company to wind up voluntarily, the Court may make an order directing that 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.”

In support of the application the following authorities were cited—Buckley on the Companies Acts (5th edition), 316; Owen's Patent Wheel Company, 29 L.T. 672, 22 W.R. 151; Simons' Reef Company, 31 W.R. 328.

The Court, without further proceeding or intimation, on 1st December 1888 pronounced the following interlocutor:—

“Direct and ordain that the voluntary winding-up of the Leith Heritages Company (Limited), resolved on by the extraordinary resolutions passed at the extraordinary

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general meeting of the company held on 29th November 1888, be continued, but subject to the supervision of the Court, in terms and with the powers conferred by the Companies Acts 1862 to 1886: Recal the appointment of James Alexander Molleson as provisional official liquidator of the estate and effects of the said company: Of consent confirm the appointment of the petitioner, the said John Frederick Moffatt, as liquidator of the said company, in terms of and with all the powers conferred by the said Acts: Also confirm the appointment of Thomas Aitken, 5 Grosvenor Crescent, Edinburgh, Robert, Clark, printer, Edinburgh, and James Macdonald, S.S.C. there, as a committee to advise with the liquidator in relation to all matters or questions arising in the liquidation: Declare that any of the proceedings under the said voluntary winding-up may be adopted as the Court may think fit: And declare that the creditors, contributories, and liquidator of the said company, and all other persons interested are to be at liberty to apply to the Court as there may be just occasion: Further, direct and ordain that unless and until it shall be otherwise directed and ordained by the Court, the liquidator shall not effect any compromise with any contributory except with the special leave of the Court: Find the said Thomas Aitken and Robert Clark and William Halden Beattie and David M'Gibbon, the petitioners, entitled to the expenses of the petition, and direct the same to be expenses in the liquidation, and remit to Lord Kinnear, Ordinary, in terms of the 6th section of the Companies Act 1886, to proceed in the subsequent proceedings in the winding-up; and decern.”