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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edinburgh Magistrates, Petitioners [1912] ScotLR 61 (12 November 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0061.html
Cite as: [1912] SLR 61, [1912] ScotLR 61
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SCOTTISH_SLR_Court_of_Session
Page: 61↓
Court of Session Inner House First Division.
[
Facts:
A winding-up order pronounced by the Lord Ordinary officiating on the Bills in vacation is reviewable.
The Companies (Consolidation) Act 1908 enacts—section 135—“The Court having jurisdiction to wind up companies registered in Scotland shall be the Court of
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Session in either Division thereof, or, in the event of a remit to a permanent Lord Ordinary, that Lord Ordinary during Session, and in time of vacation the Lord Ordinary on the Bills.” Section 181—“(1) Subject to rules of Court, an appeal from any order or decision made or given in the winding-up of a company by the Court under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction. (2) Provided, in regard to orders or judgments pronounced in Scotland by the Lord Ordinary on the Bills in vacation, that (i) No order or judgment under the provisions of this Act specified in the first part of the fourth schedule to this Act shall be subject to review, reduction, suspension, or stay of execution; and (ii) Every other order or judgment (except as hereinafter mentioned) shall be subject to review only by reclaiming note in common form, presented within fourteen days from the date of the order or judgment …” [A winding-up order is not among those specified in the schedule.]
On 18th July 1912 the Lord Provost, Magistrates, and Council of the City of Edinburgh presented a petition under the Companies (Consolidation) Act 1908 for the winding-up of the Union Billposting Company. Limited, 30 St Andrew Square, Edinburgh.
The petitioners, who were creditors of the company to the extent of £43 odd (being the taxed amount of expenses of an action against them at the company's instance and dues of extract) averred—“The said Union Billposting Company, Limited, is in fact insolvent and unable to pay its debts, and it is just and equitable that it should be wound up by the Court: On 22nd June 1912 the petitioners charged the said Union Billposting Company, Limited, to make payment of the said sum of £43, 18s. 8d., conform to execution of charge herewith produced and referred to. The said charge has now expired and payment has not been made.”
The company lodged answers, in which they denied that the company was insolvent, and with reference to the sum of £43 odd, for which the charge had been given, explained that the petitioners had accepted a guarantee of payment in full satisfaction of the debt; that they (the respondents) were in course of raising proceedings for the reduction of the charge, and that the petition should meantime he sisted.
On 3rd August 1912 the Lord Ordinary officiating on the Bills ( Kinnear) pronounced the usual winding-up order.
The company reclaimed.
On the case appearing in the Single Bills counsel for the petitioners objected to the competency of the reclaiming note on the ground that the interlocutor reclaimed against was final.
He argued—The Court having jurisdiction to wind up companies during vacation was the Lord Ordinary on the Bills—Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 135; London County and Westminster Bank, Limited, Petitioners, 1911 S.C. 1073, 48 S.L.R. 884. His Lordship took the place of the Division during session, and his interlocutor therefore was final. Were this reclaiming note to be held competent, the provisions of the Act quoad winding-up during vacation, viz., section 135, would be rendered nugatory.
Argued for the company—The reclaiming note was competent, for all orders were appealable unless the Act had declared them to be final. That was clear from the provisions of section 181, sub-sections (1) and (2), and the terms of Schedule IV. That schedule specified certain orders pronounced in vacation which were to be final, and no mention was made therein of the order in question.
At advising—
The jurisdiction of the Lord Ordinary to wind up a company depends upon the 135th section of the Companies Consolidation Act 1908. That section has already been under judicial interpretation— London County and Westminster Bank, 1911 S.C. 1073—and in accordance with the decision there given there is no question that the Lord Ordinary has jurisdiction to pronounce an interlocutor ordering the winding-up of a company. But section 135 per se does not deal with the competency of a reclaiming note against such an interlocutor. That, however, is dealt with by section 181, which says that “subject to rules of Court, an appeal from any order or decision made or given in the winding-up of a company by the Court under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction.” “The Court” there means the Court of Session in either Division, and it would mean that the ordinary rules apply that apply to appeals to the House of Lords. Where, however, the Court is described as the Lord Ordinary during session, or in time of vacation the Lord Ordinary on the Bills, that introduces the ordinary rules as to reclaiming notes against decisions of Lords Ordinary, and undoubtedly a reclaiming note is competent against any interlocutor of the Lord Ordinary on the Bills.
But section 181, sub-section (2), contains a special proviso as regards orders or judgments pronounced by the Lord Ordinary on the Bills in vacation in the following
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Now when you come to the schedule you find—“Part I. Orders pronounced in vacation in Scotland which are to be final;” and among the orders enumerated there you do not find an order directing the winding-up of a company. In the same way, in part ii again—which enumerates orders “to take effect until reclaiming note disposed of”—you do not find it. It seems to me that the statute has dealt specially with those things which it thought necessary to deal with specially; and this particular case is not one of the cases which are dealt with specially. And then, for everything else, it says that the ordinary rules for reclaiming notes are to obtain. It follows, therefore, I think quite clearly, that this reclaiming note is competent.
The Court having jurisdiction to wind up companies registered in Scotland is, under the Companies Act 1908, section 135, in rime of vacation the Lord Ordinary on the Bills, for he takes the place both of the Division and, in event of a remit, of the permanent Lord Ordinary— London County and Westminster Bank, 1911 S.C. 1073.
It was, I think, accepted that the orders of the permanent Lord Ordinary, where there has been a remit, would be subject to review in ordinary course, unless the Act contained some distinct proviso to the contrary. Not only does it not do so, but it makes the reviewability of such interlocutor matter of express enactment. For section 181, sub-section (1), says that an appeal from any order or decision made or given in the winding up of a company by the Court under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order of the Court in cases within its ordinary jurisdiction. The Court, where there is a remit, is the permanent Lord Ordinary. And though “appeal” is not, in the ordinary language of our Courts, the appropriate term for the process of review of a Lord Ordinary's order or decision, it is made quite clear that it is used as equivalent to “process of review.” For sub-section (3) goes on to provide that the mode of reviewing a permanent Lord Ordinary's order, etc., shall be limited to reclaiming note presented within fourteen days.
Now if the order or decision of a permanent Lord Ordinary sitting in session, and fully seized with the business of the liquidation, is yet subject to review, it would be an unexpected result of these provisions regarding the Court having jurisdiction in winding up, and would on general considerations be anomalous, that the order or decision of the Lord Ordinary on the Bills, called in ad hoc, during vacation, and having no necessary acquaintance with the business and progress of the liquidation, should, as contended by the respondents in the reclaiming note, be final. If it was so intended, one would expect to find some very precise declaration to that effect. Instead of that we have in sub-section (2) the provisions, first, that no order of the Lord Ordinary on the Bills specified in the first part of Schedule 4 to the Act shall be subject to review; and second, that every other order shall be subject to review only by reclaiming note presented within fourteen days. As the order in question is not among those specified in the first part of Schedule 4, this would appear to conclude the question. But then it is said that the second provision is coupled with the rider that orders or judgments of the Lord Ordinary on the Bills specified in the second part of Schedule 4 shall not be stayed by reason of a reclaiming note being taken against them. The order in question is not among the orders so specified. But this does not lead to the result that it is not reviewable, but only to the result that if brought under review in the mode defined by the statute the ordinary consequence follows, viz., that its effect is stayed till the reclaiming note is disposed of.
The Court repelled the objections and sent the case to the summar roll.
Counsel for Reclaimers— A. J. P. Menzies. Agent— Arthur C. M'Laren, Solicitor.
Counsel for Respondents— Morton. Agent— The Town Clerk ( Sir Thomas Hunter, W.S.).