Scottish Court of Session Decisions

The Forth Shipbreaking Company, Limited, now in liquidation, and John Taylor Tulloch, chartered accountant, Glasgow, the liquidator thereof, and William Fulton Andrew, chartered accountant, Glasgow, presented a petition in which they craved the Court “To make an order upon such terms as your Lordships shall think fit, declaring the dissolution of the Forth Shipbreaking Company, Limited, incorporated under the Companies Acts 1862 to 1900 on 2nd May 1905 to have been void for the purpose of the hereinafter authority being exercised, and to authorise the petitioner William Fulton Andrew as surviving liquidator

Page: 372↓

of said last-mentioned company to make up title in his own name so far as may be necessary, and to grant such formal title or titles as may be requisite, to vest the heritable subjects situated within or in the neighbourhood of the burgh of Linlithgow and at Philpingstone Road, Bo'ness, at present standing in the name of said last—mentioned company, in the petitioners the Forth Shipbreaking Company, Limited, incorporated under the Companies Acts 1908 to 1917 on 25th September 1920, now in liquidation, and John Taylor Tulloch, the liquidator thereof, or with their consent in the purchaser or purchasers of said subjects from them.”

The circumstances in which the petition was presented appear from the following report of George F. Hair, solicitor, Edinburgh, to whom the petition was remitted—“On 2nd May 1905 the Forth Shipbreaking Company, Limited (hereinafter called the old company), was incorporated under the Companies Acts 1862 to 1900. By special resolution of the old company passed on the 8th and confirmed on the 23rd September 1920 it was resolved that the company be wound up voluntarily and that Robert Martin Maclay, chartered accountant, Glasgow (now deceased), and the petitioner the said William Fulton Andrew, be appointed liquidators. By minute of agreement dated 25th September 1920, entered into between the old company and the liquidators thereof of the first part, and a new company to be formed with the same name of the second part, the old company and the liquidators thereof sold to the new company, which was duly incorporated on 25th September 1920, the whole property and assets of the old company. On 18th April 1921 a meeting of the shareholders of the old company was held, at which the liquidators submitted the accounts in the winding-up. Thereafter the liquidators made the usual statutory return to the Registrar of Joint Stock Companies, who registered it on 25th April 1921. Three months after said last-mentioned date the old company was in terms of section 119 of the Companies (Consolidation) Act 1908 dissolved. It had apparently been overlooked that, following upon the execution of the said minute of agreement, the old company and its liquidators should have executed in favour of the new company dispositions of the heritable properties belonging to the old company. On 7th April 1921 the new company passed an extraordinary resolution that the new company be wound up voluntarily, and appointed the said Robert Martin Maclay (now deceased) and the petitioner the said John Taylor Tulloch liquidators thereof. The said John Taylor Tulloch as surviving liquidator of the new company has sold certain subjects in Linlithgow which belonged to the old company at a price of £1100 and desires to sell also heritable subjects in Bo'ness, but finds that he is not in titulo to grant a conveyance to the purchaser of the property in Linlithgow, or if and when the same is sold to a purchaser of the subjects in Bo'ness. In these circumstances the petitioners seek to have the dissolution of the old company declared void and to authorise the petitioner William Fulton Andrew as surviving liquidator of said company to make up title in his own name so far as necessary and to grant formal titles as may be requisite, vesting said heritable subjects in name of the petitioners, or with their consent in the purchaser or purchasers thereof. Section 223 of the Companies (Consolidation) Act 1908 provides as follows:—‘(1) Where a company as 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.’ As more than two years have elapsed since the date of the dissolution of the old company advantage of the provisions of the above section cannot be taken, and the application is accordingly made in virtue of your Lordships’ nobile offlcium.… In the whole circumstances the reporter is respectfully of opinion that if your Lordships consider that the nobile officium of the Court may be exercised this would not in any way prejudice any person. The petition expressly limits the purpose for which it is craved that the dissolution be declared void. In the case of the petition of the Champdany Jute Company, Limited, decided by your Lordships on 9th January 1924, your Lordships caused a similar limitation to be deleted from the prayer of the petition before declaring the dissolution to ave been void. That case, however, fell within the terms of section 223 of the Companies (Consolidation) Act 1908, the Company having been wound up less than two years prior to the presentation of the petition. It accordingly differs in that respect from the present case, and it humbly appears to your reporter that it might be of advantage if your Lordships should think fit to declare the dissolution void, to do so only to the limited extent and for the purpose craved.”

On 8th March 1924 counsel moved the Court to grant the prayer of the petition and cited Collins Brothers & Company, 1916 S.C. 620, 53 S.L.R. 454; Macdonald's Curator Bonis, 1924, 61 S.L.R. 207. The Lord President referred to Erskine, iii, 10, 4.