Winding-up by the Court-The Petition. but the following form, adapted from the form in the English Part VI. rules of 1890, affords a basis for all forms, to be modified as 4. That the objects for which the company was established are as 5. That (here set out in paragraphs any special facts on which the 6. That the company is indebted to your petitioner in the sum of 7. That your petitioner has made application to the company for pay- 8. That (here set out, if need be, particulars bringing the petitioner 9. That the company is insolvent, and unable to pay its debts. (After setting out in paragraphs any other facts on which the petitioner relies, conclude as follows :-) Your Petitioner therefore humbly prays as follows: 1. That "The Company, Limited," may be wound-up by the Court under the provisions of The Companies Act, 1903. Part VI. Form of petition. Where presented. Affidavit verifying. By whom made. Directions for hearing. Winding-up by the Court-The Petition. (If proceedings have been taken to have the company wound-up voluntarily, set out the facts in the petition, and add the following:-) 2. In the alternative that the company, if wound-up voluntarily, be wound-up under supervision (see Sec. 235 of 1903). 3. Or that such order be made in the premises as shall be just. The petition must be presented at the Supreme Court office nearest to and in the same district as the company's registered office (or, if there be no such registered office, then where the principal or last known place of business of the company) is situate (Rule 5). Within four days after the petition has been presented there must be sworn and filed an affidavit verifying the petition, and in the form or to the effect following: In the Supreme Court of New Zealand. Wellington District. In the matter of (heading as in petition). I, A.B., of make oath and say that such of the statements in the petition now produced, and shewn to me and marked with the letter A, as relate to my own acts and deeds are true, and such of the said statements as relate to the acts and deeds of any other person or persons I believe to be true. Sworn, &c. (Form 2 in 3rd Schedule to Rules). The affidavit must be made by the petitioner, or by one of the petitioners if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof (Rule 7). As to swearing affidavit before presenting petition, see Sutherland Manure Co., 11 N.Z. 460, and Western Benefit Society, 33 Beav. 368, where affidavit filed prematurely was allowed to be re-sworn and filed, and order dated accordingly. The Court has power under Rule 74 to relax the requirements of this rule; as to extension of time where affidavit irregularly filed, see East Cambrian Gold Mining Co., 12 L.T. 587; London and Westminster &c. Co., 17 L.T. 559; Kentish Royal Hotel Co., 13 W.R. 448; Patent Boot and Shoe Co., 32 Beav. 142; Anglo-Danish Navigation Co., 15 W.R. 105. As to affidavit by a person other than as mentioned in the rule where compliance is impossible, see Fortune Copper Mining Co., 10 Eq. 390; where the petition is presented by an individual and not by a company, the affidavit cannot be made by the petitioner's manager, and non-compliance with the rule is fatal: Charterland &c. Co., 1900, 2 Ch. 870. After the petition has been presented, the petitioner moves for directions as to date of hearing, and (although it appears unnecessary so long as Rule 4 is complied with) as to advertising; see form of advertisement, Form 1 in 3rd Schedule to rules. If the petition asks in the alternative for a supervision order, the advertisement should state the alternative prayer. The petition Winding-up by the Court-The Petition. must be advertised in compliance with Rule 4: City and County Part VI. As to adjournment and postponing date of order for irregularities, see London and Westminster Wine Co., 1 H. & M. 561; London Indiarubber Co., 14 W.R. 594; Army and Navy Hotel, ut sup; Charterland &c. Co., 1900, 2 Ch. 870. The advertisement is notice to all the world: Emmerson's case, 2 Eq. 231; but not to a person whom it could not possibly reach Ex p. Guillemin, 28 C.D. 634. Rule 4 does not warrant the advertisement of the petition in extenso: Cheltenham Railway &c. Co., 8 Eq. 580. Every creditor's or contributory's petition must be served on the company. The rules are silent as to the period which must elapse between service and hearing, but the Supreme Court Code applies (W.U., Rule 75), and three clear days' service would, strictly speaking, be sufficient (S.C. Code, Rules 389 and 408). The safer course, to avoid an application for an adjournment, is to serve the petition as soon as possible after the date of hearing has been fixed. The petition must be served at the registered office (if any) of the company, and, if there is no registered office, then at the principal or last-known principal place of business of the company, if any such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the company as the Court may direct; and every petition for the winding-up of a company, subject to the supervision of the Court, shall also be served upon the liquidator (if any) appointed for the purpose of winding-up the affairs of the company (Rule 3). It is, however, sufficient if service be accepted by the company's solicitor having authority from the directors: Regent United Service Stores, 8 C.D. 75. In case of difficulty it is expedient to apply for directions under the rule. The Court has directed service on any five directors: Unity Assurance Association, 11 W.R. 355; on the solicitor and one director: South Essex Estuary Co., 18 L.T. 178; on the chairman and general manager: National Credit Co., 11 Service of petition. Part VI. Hearing and evidence. Who may be heard. Winding-up by the Court-The Petition. W.R. 161. Service on a workman employed on the site where office formerly stood is insufficient: Manchester and London Association, 9 Eq. 643. Service on the managing director at the branch office of a foreign company is sufficient: Matheson Bros., 27 C.D. 225. Service on the secretary and two directors at an unregistered office where there was no registered office held sufficient: Fortune Copper Mining Co., 10 Eq. 390. Hearing and Evidence: The affidavit verifying the petition is, by Rule 7, declared to be prima facie evidence of the statements in the petition. "The statutory affidavit strictly is no proof of anything. It is hearsay as to almost everything alleged in it, but it is sufficient to require an answer": Gold Hill Mines, 23 C.D. 210, per Lindley, L.J. If the petition be opposed it will be essential to file further affidavits, though, if the petition shows on its face a case for winding-up and the statements are uncontroverted by affidavits of the opposing parties, the affidavit under the rules is sufficient to warrant an order. The proceeding on a petition is not interlocutory, and evidence of information or belief (excepting in the verifying affidavit) is inadmissible: New Callao, 47 L.T. 175. The sections of the statutes particularly important to be considered in connection with the hearing are 183, 185, 233, 234, 235, and 236 of 1903; see pp. 303 et seq. infra. Who May be Heard. The only persons entitled to be heard on a winding-up petition are the company, the creditors, and contributories : Bradford Navigation Co., 5 Ch. 600; and, if a voluntary liquidation is in progress, the liquidator: Mont de Piete of England, 1892, W.N. 166. But a provisional official liquidator is not entitled to appear, and will be refused his costs. He is a mere receiver pendente lite General International Agency Co., 34 L.J. Ch. 337. The New Zealand Rules contain no provision for creditors or contributories who intend to appear on the hearing giving notice to the petitioner. Section 183 of 1903 Upon hearing the petition, the Court may either grant or dismiss the same, with or without costs, may adjourn the hearing conditionally or unconditionally, and make any interim order or any other order that it deems just. The Petition-Hearing and Evidence. The Court is reluctant to adjourn a petition excepting in the Part VI. interests of the company, because a winding-up order will relate back and affect what may be done in the meantime : Metropolitan Railway &c. Co., 17 L.T. 108, per Lord Cairns at p. 111, Ex p. Hawkins, 28 L.J. Ch. 830; Chapel House Colliery Co., 24 C.D. 267, per Cotton, L.J.; Albion Bank, 15 L.T. 346; see powers under Sec. 185 of 1903. As to an adjournment to give time to the company to pay off a creditor, see Brighton Hotel Co., 6 Eq. 339; Western of Canada Oil Co., 17 Eq.-1; Langley Mill &c. Co., 12 Eq. 26; St. Thomas's Dock Co., 2 C.D. 116: (see especially the conditions on which this petition was ordered to stand over, being a form of order which is now frequently adopted.) In Great Western Coal Co., 21 C.D. 769, the petition was ordered to stand over for six months to enable the petitioner to enforce his security. In Great Britain Mutual Society, 16 C.D. 246, the petition was ordered to stand over till after meeting of policy-holders. In The City and County Bank, 10 Ch. 470, a petition was ordered to stand over to enable creditors and shareholders to consider the question of voluntary winding-up. Section 185 of 1903 (1) The Court may, as to all matters relating to the winding-up, have Wishes of regard to the wishes of the creditors or contributories as proved to it by creditors and any sufficient evidence, and may direct meetings of the creditors or contributories contributories to be summoned, held and conducted in such manner as it thinks fit, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman at any such meeting, and to report the result of such meeting to the Court. (2) In the case of creditors, regard is to be had to the amount or value of the debts due to each creditor, and, in the case of contributories, to the number of votes conferred on each contributory by the regulations of the company. In the following cases compulsory orders were made against the wish of a majority of shareholders :- West Surrey Tannery Co., 2 Eq. 737; Ex p. Spartali & Tabor, 14 L.T. 726; British Oil and Cannel Co., 15 L.T. 601; Great Northern Copper Co., 20 L.T. 264; Tumacacori Mining Co., 17 Eq. 534; Varieties Limited, 1893, 2 Ch. 235. In the following cases the order was refused where a resolution for voluntary winding-up had been passed Madras Coffee Co., 17 W.R. 643; Langley Mill Co., 12 Eq. 26; Union Hill Silver Co., 22 L.T. 400; Universal Drug Supply Association, 1874, W.N. 125; Irrigation Co. &c., 6 Ch. 176; Uruguay Central Railway Co., 11 C.D. 372; Dore Gallery, 1891, W.N. 98; Petersburgh Gas Co., 33 L.T. 637. |