TMI Blog1954 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... n out by the official receiver came before Roxburgh J., who made no order thereon. The matter was taken to the Court of Appeal, which affirmed the conclusion of Roxburgh J., though for a different reason [1953] Ch. 488; [1953] 2 All E.R. 74. Eversbed M.R., who delivered the leading judgment, having first dealt with the reasons which underlay the judgment of Roxburgh J., referred to the argument of Mr. Buckley which had advanced the proposition that no "further" report under section 236(2) was required, or, indeed, could be made, as the liquidation was a voluntary liquidation. It was the absence of that "further" report; which in his view must be in existence to ground jurisdiction in the court to make an order, that led Roxburgh J. to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be found to make the application. Since that application is not at present before the court it would not be right for me to express a final view on any problems which might arise if it were before the court. But the view which I have taken, with all respect to Roxburgh J., on the question whether there must be a 'further' report in a voluntary winding up, no less than in a compulsory winding up, applies where there is an application under section 307, no less than where application is made under section 331. I cannot suppose that when Parliament says that the court may, on application, exercise any of the powers in a voluntary winding up which it may exercise in a compulsory winding up, it was saying at the same time that if the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reful consideration indeed to the matter; and now the question comes before me by way of a motion to discharge that order. The simple question is whether the view expressed by Evershed M.R., as being his view as then advised, is a view which should be followed on the ground that on careful investigation there is nothing which should operate to prevent its application. It is quite true that he expressed his view to be a view "as at present advised"; but, as I read his judgment, the only reason why he did not treat that view as a concluded and final view was not because he had any doubt as to the soundness of the reasoning which led to it, but only because further investigation might disclose some good reason against the application of that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 8 only applies when a compulsory winding-up order has been made, and the official receiver, therefore, now applies for that form of order under section 14 of the Act of 1890. If this is not a case contemplated by the framers of that provision, it is difficult to say when the section does apply." The voluntary liquidator was represented by counsel and he objected to the making of a compulsory order, but put forward no suggestion that there was any other method of obtaining a public examination. The judge did not deal with this matter at all in his judgment. It is plain that it was never argued; and although the case weald appear to have gone upon the basis that, in order to obtain an order for public examination, it would first be necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public examination under this section cannot by virtue of section 307 be made in a voluntary winding up, nor c n such an order be made in a winding up under supervision (section 316 and Eleventh Schedule). The rest of the authorities to which my attention has been directed do not appear to me to affect the matter, and they do not disclose even the establishment of such a practice as might make the court hesitant to invoke section 807 in the present case. Even if they did that but no more, on a question of jurisdiction the matter would have to depend in the end upon the interpretation of the language of the statute and not upon any practice which might have grown up. When one turns to section 307, one finds language which on the face of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made a further report," is a condition the existence of which, by the reasoning of Evershed M.R., must be confined to the case where there is a compulsory winding up. If the court desires to make an order under section 307 it cannot be any bar to that order that if the liquidation had been a compulsory liquidation there would have to have been a further report. This result may be thought curious when one considers that in the case of an application for a public examination in a compulsory liquidation a number of steps have to be taken in order to ensure that a step undoubtedly so serious is not taken except in proper circumstances, and so as to ensure a certain amount of security or protection to the individual whose examination is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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