Scottish Court of Session Decisions

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Cite as: [1910] SLR 2, [1910] ScotLR 2

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

(Single Bills.)

Saturday, October 15. 1910.

48 SLR 2

Eadie Petitioner.

v.

Seafield Preserve Company, Limited Petitioners.

Subject_1Company
Subject_2Liquidation
Subject_3Expenses
Subject_4Petition for Judicial Winding-up Followed by Petition for Supervision Order instead of a Note.
Facts:

When a petition is already in Court for the judicial winding-up of a company, and thereafter the company resolves to wind itself up and obtain the supervision of the Court, it should for this purpose present a note in the petition already before the Court and not a new petition.

When a new petition was presented the company was found entitled only to such expenses as would have been incurred by it had a note been presented.

Headnote:

On 19th July 1910 Andrew Morrison Eadie presented a petition for the judicial winding-up of the Seafield Preserve Company, Limited, in which he was a shareholder, and suggested Robert Archibald Craig, C. A., as liquidator.

On 20th July 1910 an extraordinary general meeting of the shareholders of the company was held, when the following extraordinary resolutions were unanimously adopted—“That it has been proved to the satisfaction of the company that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same, and that the same be wound up accordingly.” “That Charles John Munro, chartered accountant, Edinburgh, be and is hereby appointed liquidator for the purpose of winding-up, and that the liquidator be instructed to take the necessary steps for having the liquidation placed under the supervision of the Court.”

On 21st July the company and the liquidator thereof presented a petition for a supervision order.

Judgment:

Lord President — Two petitions have been presented with regard to the winding-up of this company, one by a shareholder and the other by the company. The shareholder presented his petition on 19th July, and the crave of that petition is that the company should be wound up by the Court. On 21st July the company presented a petition on its own behalf craving that the voluntary winding-up resolved on at a meeting of the Company should be continued under the supervision of the Court; and it subsequently lodged answers in the other petition.

We shall dispose of the matter in this way. We shall order the company to be wound up under the supervision of the Court, as craved in the company's petition, but we shall make the order, not in that petition, but in the shareholder's petition, as it was first presented, and we shall find the petitioner entitled to expenses. That will make it unnecessary for us to deal with the company's petition except as to the crave for expenses, and in that matter we shall allow the company its expenses, but limited to those only which would have been incurred had the company lodged a note in the shareholder's petition, for that was the course which the company should have taken, and there was no necessity for its presenting a separate petition.

Lord Kinnear, Lord Johnston, and Lord Salvesen concurred.

The Court pronounced these interlocutors in the respective petitions:—

“… Order that the voluntary winding up of the Seafield Preserve Company, Limited, resolved on at an extraordinary general meeting held
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on 2nd July 1910, be continued, but subject to the supervision of the Court: Confirm the appointment of Charles John Munro, C.A., as liquidator of such company, in terms of and with all the powers conferred by the Companies (Consolidation) Act 1908: Find the petitioner entitled to expenses as these may be taxed by the Auditor, to whom remit the account for taxation; direct these expenses to be chargeable against the liquidation, and decern.”

In respect of the supervision order granted of this date in the petition at the instance of Andrew Morrison Eadie for winding up of the Seafield Preserve Company, Limited, find it unnecessary to dispose of the petition except in so far as it craves expenses: Find the petitioners entitled to expenses, but only such as would have been incurred by them had a note been presented in the said application for winding up instead of a petition being presented to the Court; remit to the Auditor for taxation, and declare these expenses to be chargeable against the liquidation.”

Counsel:

Counsel for the Petitioner Eadie— J. G. Jameson. Agent— Malcolm Graham Yool, S.S.C.

Counsel for the Petitioners the Seafield Preserve Company, Limited, and the Liquidator thereof— Mair. Agents— Garden & Robertson, S.S.C.
1910