Scottish Court of Session Decisions

The Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 8), section 223, enacts—“(1) Where a company has been dissolved, the Court may at any time within two years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the Court to be interested, make an order, upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.”

Findley Caldwell Ker, liquidator of M'Call & Stephen, Limited, John Stewart Roberton, as trustee of the late Hugh Wilson, engraver and lithographer, Glasgow, and the Clydesdale Bank, Limited, having their registered office at 30 Saint Vincent Place, Glasgow, petitioners, presented a petition for an order declaring the dissolution of the company to have been void.

The petition stated, inter alia—“That M'Call & Stephen, Limited, incorporated under the Companies Acts 1862 to 1906, biscuit manufacturers, Adelphi Biscuit Factory, Adelphi Street, Glasgow, went into voluntary liquidation on or about 22nd December 1911. That the petitioner the said Findley Caldwell Ker was appointed liquidator at an extraordinary meeting of said company held at Glasgow on 22nd December 1911. That part of the assets of the said company consisted of the heritable subjects known as the Adelphi Biscuit Factory. That the petitioner the said John Stewart Roberton is sole surviving assumed trustee of the late Hugh Wilson, engraver and lithographer, Glasgow, under his trust-disposition and settlement dated 2nd March 1858, and with codicil thereto registered in the Books of Council and Session 13th July 1869. That the petitioner the said John Stewart Roberton as trustee foresaid is vest in a bond and disposition in security for £4000 over said heritable subjects. That the petitioners the said Clydesdale Bank, Limted, are vested in a bond of cash-credit and

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disposition in security for £7000 over said heritable subjects. That the petitioner the said Findley Caldwell Ker being in titulo to grant a title to said security subjects, acting with consent of the said heritable creditors, exposed the said subjects to public roup within the Faculty Hall on 17th June 1914 at the upset price of £5000, under and in virtue of certain articles and conditions of roup. There was no offerer for said subjects, and the said exposure was adjourned. That the petitioner the said Findley Caldwell Ker thereafter, with consent of said security holders, let the said subjects on leases expiring in the year 1925. … That the petitioner the said Findley Caldwell Ker, in virtue of [section 195 of the Companies (Consolidation) Act 1908, providing for certain procedure to be followed in the winding up and dissolution], made up an account of the winding-up of the said liquidation, and laid said account before a general meeting of the shareholders of the said M'Call & Stephen, Limited, held at Glasgow on or about 14th January 1919. He also made a return to the Registrar of Companies of the holding of said meeting and of its date. Said return was forthwith registered by the said registrar. That the petitioner the said Findley Caldwell Ker, at the request and with the consent of the said security holders, re-exposed the said security subjects to public roup and sale within the Faculty Hall, Glasgow, aforesaid on 2nd July 1919 at the upset price of £5500 sterling. The said subjects were sold at the price of £11,260. This sum even with the accruing rents under the existing leases will not be sufficient to pay off entirely the company's indebtedness to the petitioners John Stewart Roberton and the Clydesdale Bank, Limited. That the purchasers of said subjects refused to accept a conveyance thereto by the petitioner the said Findley Caldwell Ker, with consent of the said security holders the petitioners the said John Stewart Roberton, as trustee foresaid, and the said Clydesdale Bank, Limited, in respect that in accordance with the registration of the foresaid return the said company of M'Call & Stephen, Limited, became dissolved on or about the 15th day of April 1919.”

No answers were lodged.

Argued for the petitioners—The Court had express authority under section 223 of the Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69)— Collins Brothers & Company, Limited, 1916 S.C. 620, 43 S.L.R. 454. No remit to a man of business was necessary, and the additional expense of such remit should if possible be avoided.

The Court granted the prayer of the petition.