Scottish Court of Session Decisions

On 30th April 1884 the Boson Oil Company (Limited) was incorporated under the Companies Acts 1862 to 1880, and on 15th August 1888 it was duly resolved that the said company should be wound up voluntarily in terms of the said Acts, and Henry Moncreiff Horsburgh, C.A., was appointed liquidator.

George Simpson, Lomond House, Trinity, was entered on the register of members of the said company as proprietor of, inter alia, 1440 shares. In October 1888 he presented the present petition to have the register of members rectified and his name deleted as a shareholder of the 1440 shares.

Section 35 of the Companies Act of 1862 provides that “If the name of any person is without sufficient cause entered in … the register of members of any company under this Act … the member aggrieved … may, as respects companies registered in Scotland, by summary petition to the Court of Session, or in such other manner as the said Courts may direct, apply for an order of the Court that the register may be rectified.” …

The liquidator lodged answers, in which he averred that the shares in respect of which the petitioner's name stood on the register of the company consisted of two lots—(1) A lot of 1391, which were part of a lot of 1441 which had been improperly allotted to the petitioner, and for the calls upon which the directors were advised that the petitioner could not be made liable. (2) 49 shares, which were part of 100 shares which the petitioner acquired by transfer in October 1885; £1 per share had been paid upon these shares, and the balance of £9 per share (amounting in all to £441) was still due.

In January 1889 a note was presented to the Court by the liquidator stating that since his answers to the petition had been lodged he had succeeded in effecting an arrangement with the petitioner of the matters in dispute between them.

The material provisions of this arrangement were (1) that the petitioner was to pay the liquidator the sum of £196, being £5 per share on the foresaid 49 shares (less £1 per share already paid thereon); (2) that both parties agreed that the aforesaid 1440 shares be deleted from the register of the said company in liquidation, and held as cancelled.

The liquidator accordingly prayed the Court to approve of the minute of agreement, and to order the rectification of the register of the Boson Oil Company in terms thereof.

Argued for the liquidator—This was an incidental application in the course of a voluntary liquidation, and was competent under section 138. It was just the kind of application contemplated by the section; and the Court should give effect to the section by sanctioning the agreement come to between the liquidator and the petitioner.— Sdeuard v. Gardiner, March 10, 1876, 3 R. 577, and 5 R. 867; Clark v. Wilson, June 7, 1878, 5 R. 867; Gardner v. Hughes, July 11, 1883, 10 R. 1138.

Argued for the petitioner—The petitioner and the liquidator were at one in desiring that effect should be given to the agreement arrived at, and as the whole facts were before the Court no further inquiry was necessary.

The Court pronounced the following interlocutor:—

“Approve of the said minute of agreement, and on payment of £196 by the petitioner to the said liquidator, order and direct that the register of shareholders or members of the Boson Oil Company, Limited, be rectified by deleting or removing therefrom the name of the petitioner as a shareholder of the said company in so far as the 1440 shares of the said company mentioned in the petition and proceedings are concerned, and that due notice of such rectification be given to the Registrar of Joint-Stock Companies.” …