Scottish Court of Session Decisions

On 25th June 1923 Arthur Herbert Kerr, curator bonis to the Right Honourable Ronald Archibald Bosvile Macdonald, Baron Macdonald, and George Allan Robertson, chartered accountant, Edinburgh, petitioners, presented a petition to the First Division craving the Court to declare the dissolution of the company known as Skye Marble, Limited, to have been void for the purpose of enabling the petitioner George Allan Robertson, as liquidator of the company, to grant a disposition ad perpetuam remanentiam “of the two pieces of ground disponed in the second and third places respectively by the … feu-charter, dated 5th and recorded in the Division of the General Register of Sasines applicable to the county of Inverness 29th May 1911, in favour of … the Right Honourable Ronald Archibald Bosvile Macdonald, Baron Macdonald, and to authorise the said George Allan Robertson to execute the said disposition ad perpetuam remanentiam without adhibiting the seal of the said company.”

The petition stated—“That Skye Marble, Limited (hereinafter called the company), was on 16th August 1907 incorporated as a company limited by shares under the Companies Acts 1862 to 1900. The main object of the company was to work marble quarries in the Strath district of the Island of Skye. The company was proprietor of a feu consisting of three pieces of ground in the neighbourhood of Broadford, Skye, under and in virtue of a feu-charter in its favour granted by the Honourable Godfrey Evan Hugh Macdonald (now deceased), then curator bonis to the said Lord Macdonald, dated 5th and recorded in the Division of the General Register of Sasines applicable to the county of Inverness 29th May 1911.

Page: 208↓

… At the end of 1912 the company went into voluntary liquidation, and Mr Eustace Radcliffe Cooper the then secretary of the company was appointed liquidator, which appointment was of this date (December 17, 1912) superseded by the Court, and Mr George Allan Robertson the present petitioner was appointed liquidator, and a supervision order was pronounced in the liquidation and a remit made to Lord Cullen, Ordinary, to proceed in the subsequent proceedings in the winding-up. In the course of the liquidation the liquidator sold the piece of ground first described in the said feu-charter but the remaining two pieces of ground were never sold, and the company still remains on record as the proprietor thereof, the liquidator not having made up a title in his own name or otherwise dealt with the same. The feu-duties exigible in respect of said two pieces of ground have not been paid since Whitsunday 1913. Of this date (March 12, 1915) the Lord Ordinary pronounced an interlocutor approving of the liquidator's final account of intromissions and his whole actings and management as liquidator, dissolving the company, and authorising the liquidator after the lapse of three months from said date to destroy the books and documents of the company. The said books and documents and also the company's seal have since been destroyed. It is necessary that the unsold portions of the said feu should be reconveyed to the superior, the said Lord Macdonald, in order that the curator bonis may be in a position to look after his ward's interests in respect thereof. The ground is at present lying derelict. As there is no legal persona in existence against whom an action of declarator of irritancy ob non solutum canonem could be brought this means of rectification cannot be employed. Section 223 of the Companies (Consolidation) Act 1908 provides as follows:—‘(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.’ More than two years, however, have elapsed since the dissolution of the company, and the situation which has arisen as above set forth is a casus improvisus. This petition is accordingly presented to the Court in virtue of its nobile officium. The petitioner the said George Allan Robertson is agreeable to grant a disposition ad perpetuam remanentiam in favour of the superior of the said feu, but as the company has been dissolved he has no authority to do so.”

The petition was intimated on the walls and in the minute book in common form and served upon the Right Honourable William Watson, K.C., His Majesty's Advocate, as representing the Crown as ultimus hœres. Thereafter on 11th July 1923 the Court remitted to Irvine R. Stirling, S.S.C., to inquire into the facts and circumstances set forth in the petition, and to report.

In his report Mr Stirling stated—“As more than two years have elapsed since the date of the dissolution of the company advantage of the provisions of the above section—section 223 of the Companies (Consolidation) Act 1908—cannot be taken, and the application is accordingly made in virtue of your Lordships’ nobile officium. The proposal which your Lordships are asked to sanction is made to the end that the above difficulty may be overcome. The petitioners have called as respondent the Right Honourable William Watson, K.C., His Majesty's Advocate for Scotland, as representing the Crown as ultimus hœres, and of this date your Lordships appointed the petition to be intimated and served upon him. Evidence has been produced that that interlocutor has been implemented, that the induciœ have expired, and that no answers have been lodged. There remains only the question of the creditors. These are represented by the second-named petitioner, the former liquidator of the company, and before closing the liquidation he was satisfied that the said pieces of ground were of no value whatever. From inquiries the reporter has made he is satisfied that this was the fact and that nothing since then has occurred to alter the position. The said pieces of ground are still lying derelict.… It appears to the reporter that the difficulty is a real one and the application reasonable, and in the whole circumstances he is respectfully of opinion that if your Lordships consider that in the circumstances the nobile officium of the Court may be exercised no person will suffer any prejudice.”

At the hearing in the summar roll the petitioners argued—In the case of Collins Brothers & Company ( 1916 S.C. 620, 53 S.L.R. 454) the Court granted a similar application in analogous circumstances. The liquidator's position was similar to that of a trustee in bankruptcy—Companies (Consolidation) Act 1908, section 151 (6)—and an application by such a trustee to the nobile officium of the Court was competent. The case of Campbell ( 1890, 18 R. 149, 28 S.L.R. 147) was not in point.

At advising—