TMI Blog1933 (12) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation, while it has been in the hands or under the control of the liquidator. The debts are, therefore, not provable debts. The Crown claims that the liquidator should be ordered to pay those sums out of moneys in his hands. It so happens that there are no sums at present in hand, but on the contrary, the sum of 890 is overdrawn at the bank. Technically, however, the liquidator may have sums in hand, as he has retained remuneration at the rate of 1,000 per annum, in addition to considerable sums for travelling expenses. Counsel for the Crown suggested that those sums should be struck out of his account, and that he should be ordered out of the resulting balance to pay the three sums I have mentioned, but it is admitted that the balance, if any, which may result from an adjustment of accounts with regard to the liquidator's remuneration and travelling expenses, may be liable to a claim by the National Provincial Bank, Ltd., and this may have to be the subject of further consideration. There are some points of construction which fall to be decided before the Court can adjudicate on this matter, and, in particular, it is necessary to consider certain sections of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be an expense incurred by the Official Receiver in getting in and realising the assets of the company. Next The liquidator's necessary disbursements, other than actual expenses of realisation heretofore provided for. Next The costs of any person properly employed by the liquidator. Next The remuneration of the liquidator. Next The actual out of pocket expenses necessarily incurred by the Committee of Inspection, subject to the approval of the Board of Trade." That rule, of course, does not apply to the present case, which, as I have said, is a case of voluntary liquidation. It may, however, be useful by way of analogy, as showing what the framers of the rules considered to be the fair way of dealing with the case where the assets available were not sufficient to pay the whole of those various costs and expenses in full and to leave anything over for the creditors of the company in the ordinary way. Accordingly, as the rule is not strictly applicable and is not binding on me, I am at liberty to disregard it, if I think it just, and, in any case, the rule is expressed to be subject to any order of the Court; but I think I ought to express the opinion which I have fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remains the fact that the tax is one payable as a Crown debt, which may be sued for and recovered in the High Court as a debt due to the Crown. I have a difficulty in seeing how a liquidator who, in the course of his liquidation, carries on the business of the company at a profit, the consequence being the assessment of the company to income tax, can avoid the conclusion that this is one of the expenses in the winding-up. It is curious that in the authorities to which I have referred the phrase does not seem to have been used by the Court. In my opinion, rates and taxes and for this purpose I can group them together, although there is for sum purposes a distinction between them falling due subsequently to the winding-up, are part of the expenses of the winding-up. I have been referred to International Marine Hydropathic Co., In re, National Arms and Ammunition Co., In re, and other cases. As far as I can see, the Court, although it has been held that in a proper case sums of the same nature as the sums which I am considering, e.g. rents falling due in respect of property held by the liquidator after the commencement of the winding-up, have got to be paid in full, has not tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interests of the shareholders to transfer the business to two French companies, one a mining company, to acquire and work the mining concessions, and the other a transport company, to acquire the railway transport and shipping concession and the assets of that part of the business. There were excepted from the proposal as to transfer to the two French companies cash and other assets which it was thought would be sufficient to pay the preference share capital in full. The ordinary shareholders were going to be remunerated out of the proceeds of the two transfers. A scheme of arrangement was put forward to carry out this arrangement, and it was approved by the Court on December, 18, 1925. On December 30 following, the company went into voluntary winding up and the person who had been manager of the company was appointed liquidator at 1,000. At that time, nobody thought the company was insolvent. The two French companies were incorporated and they entered into agreements with the company for the adoption of the scheme, and the Government was applied to for the purpose of permitting a transfer of the concession to the two companies respectively. In the meantime the liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchase of ore which he has realised, but I understand there are no such further sums to be received. In substance, the question which I have got to determine seems to me to be this: whether the liquidator is entitled to retain remuneration at the rate of 1,000 a year, fixed, as I have already said, by the shareholders of the company, which was deemed to be completely solvent, without any provision being made for the payment of debts which I hold to be part of the expenses of the winding-up. The bankers are not here, but I assume that if they were here it would be contended that the overdraft due to them as the result of the liquidator's trading is also an expense of the winding-up. Prima facie and in a normal case, my opinion is that the whole of the expenses of the winding-up ought to be paid before the remuneration of the liquidator. It seems to me, in the normal case, expenses which he has incurred, whether by the employment of agents, or, for example, in respect of gas and electric light, or for rents or any other of the numerous expenses which he may incur in the winding-up of a company, are things for which he is bound to provide out of the assets of the company, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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