Scottish Court of Session Decisions

Lord President—This is a case in which a petition was presented for the compulsory winding-up of the Ballachulish Slate Quarries Company, Limited. Upon the same day as that petition was presented, a meeting was held at which an extraordinary resolution was passed by which the company was wound up voluntarily and a liquidator appointed, and the liquidator was directed to present a petition for the continuation of the voluntary winding-up under the supervision of the Court. These two petitions, with cross answers which were lodged, came to depend before Lord Kinnear, the Lord Ordinary on the Bills in vacation, and his Lordship after hearing parties dismissed the compulsory winding-up petition and pronounced an order in the other petition for the continuation of the voluntary winding-up subject to the supervision of the Court. He also pronounced an interlocutor finding the petitioner in the petition for the compulsory winding-up and the liquidator entitled to expenses out of the estate.

That is a perfectly ordinary proceeding and the usual interlocutor, and the reason of it is of course plain enough, that even although the Court in its discretion may hold that the better form of winding-up is not a compulsory winding-up but a winding-up under the supervision of the Court, the Court is still entitled, indeed bound in proper cases, to give the petitioner who comes into Court with a petition for compulsory winding-up, his expenses, as having brought the matter into Court, the view being that the whole parties concerned have the benefit of his initial proceedings in the liquidation which is then instituted.

Now, the expenses were taxed, and they were taxed by the Auditor upon the scale of agent and client, and the present question has arisen upon the objection taken by the liquidator that, inasmuch as the interlocutor does not in terms mention agent and client, the expenses ought to be taxed as between party and party. As to the general rule in ordinary actions upon this matter there can be no doubt. “Expenses” without any more being said means taxation upon the scale of party against party, and anyone who wishes taxation on another scale must take care that it is mentioned in the interlocutor. As to that there is no doubt. But upon inquiry there seems to be as little doubt as to the rule in the present case. The finding of expenses here really means taxation as between agent and client, because there is in the proper sense of the word no question of party against party. The petitioner here was not found entitled to expenses because he had been in any sense successful against his only opponent, the liquidator. As a matter of fact, so far from being successful, he was really unsuccessful, because while he contended that the order should be for compulsory winding-up, the liquidator contended, and with success, that it should be a supervision order. He was not found entitled to expenses as having been the victor in a litigation against another party. He was found entitled to expenses because it was his petition that initiated the whole matter and really formed the true basis of the liquidation, although technically it was found in this particular instance convenient to write on the other petition.

Now in this case the truth is there is no question of party against party to whom the rule is to apply. Accordingly, I think the Auditor here has done according to the ordinary practice and according to the right practice in allowing this petitioner the expenses he has incurred so far as reasonable, that is, his expenses taxed as between agent and client.

Lord M'Laren, Lord Kinnear, and Lord Pearson concurred.