TMI Blog1954 (3) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... lace of business in England, nor were particulars of the company registered under section 35 of the Companies Act, 1907, or section 274 of the Companies (Consolidation) Act, 1908, or under any of the substituted statutory provisions. So far as mateiral, paragraphs 5, 6 and 7 of the petition read as follows: "5. The company also carried on business and entered into mercantile transactions and arrangements with persons and corporations outside Russia and in particular provided for or arranged the provision of mercantile credits and banking facilities in England, Norway, Denmark, Belgium and elsewhere 6. In the course of its business the company acquired and at all material times had and still has substantial assets in England. In particular the company was for many years a customer of Hambros Bank Ltd. The company had current or other accounts in pounds sterling with Hambros, into which the company paid or transferred or caused to be paid or transferred considerable sums of money in pounds sterling. Your petitioners believe that as a result Hambros held in December, 1947, and still hold substantial sums, the amount of which your petitioners have been unable to ascertain, on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a winding up order. The Crown opposes the petition on three grounds, which can be shortly stated. First, it is said that, on the company becoming dissolved in Russia by the year 1922 at the latest, the assets became vested in the Crown as bona vacantia; that therefore the court has no jurisdiction to wind up the company unless the Crown consents ; the Crown does not consent and therefore the court cannot make a winding-up order. Secondly, the Crown contends that to ground jurisdiction in the court to wind up a foreign company which has been dissolved by the law of the country of its incorporation it is necessary to show that the company has carried on business in this country. The presence of assets, however valuable, is not sufficient. The company never carried on business in this country and therefore I cannot make the winding-up order. Thirdly, the Crown contends that even if there is jurisdiction to do so I should not make a winding-up order at the suit of foreign creditors in respect of debts payable in Norway in Norwegian kroner, but that I should leave the Crown to get in the English assets with a view to the Crown being in a position to make ex gratia payments amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o abate such portions of the prerogative as apply to it. It seems also to be obvious that enactments may have this effect, provided they directly deal with the subject-matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative. If a statute merely recorded existing inherent powers, nothing would be gained, by the enactment for nothing would be added to the existing law. There is no object in dealing by statute with the same subject-matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise, or to provide an additional mode of attaining the same subject." Lord Parmoor is reported as saying [1920] AC. at p. 576 : The principles of construction to be applied in deciding whether the royal prerogative has been taken away or abridged are well ascertained. It may be taken away or abridged by express words, by necessary implication, or, is stated in Bacon's Abridgement, where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong." Later he says: "I am further of opinion that where a matter has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assenting to an Act which affected the rights of the Crown it is obvious that the Crown waived its prerogative to the extent necessary to give effect to the Act so long as the Act was in operation. The third observation is that as section 209 binds the Crown, section 186, which deals with the same subject-matter namely, the application of the asserts in satisfying the liabilities also binds the Crown." It is thus clear that by the Companies Act, 1948, the extent of the Crown's prerogative is cut down by necessary implication as well as expressly by the joint effect of sections 353 and 354. Once it is shown, as in my view I have shown, that a section in Part V of the Act cuts down the Crown's prerogative by necessary implication, it follows that every other applicable section of that part has the same operation if that result is necessary to its effective working. The main object of winding up a company is to procure the realization of its assets and their distribution among its creditors, including the Crown. On this basis, is it straining the language of the Act to place on its provisions a construction which, as regards such a company as this, will result in that object bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority. Lord Blanesburgh said I bid. 421. "Take a company described in sub-section (2) of section 338. That company, although in terms stated to be non-existent in the country of its incorporation, is not only a company which may be wound up but, on an order for winding it up made, it is by section 342 to be deemed to be a company under the Act, not, be it observed, a dissolved company under the Act: there is, as Cotton L.J. observed, no such thing. Following Sir George Jessel's terminology it is to be deemed to be a registered company; adapting the phraseology of the Act already alluded to and equivalent in effect, it is to be treated as if it were a company which had not been dissolved. It is not denied that it was within the competence of the legislature so to enact: the only question is whether it has in substance done so. My Lords, I cannot doubt that it has. The Act in regard to these companies is dealing with organizations which, as such, are beyond the control of Parliament. It is not for the legislature of this country either to kill or to make them alive. In this vital respect they stand in a totally different position from the companies under the Act whose dissolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be any assets over which the liquidator can exercise any powers of any kind. On the assumption I prefer to adopt the Crown acquired a defeasible title defeated upon the making of a winding-up order." Finally, Lord Macmillan said Ibid. 437 : "Be that as it may, it is manifest that the legislature has not been deterred by the fact that a company has ceased to exist from authorizing it to be wound-up. Now the purpose of pronouncing a winding-up order is to secure the collection and distribution of the assets of the company to which it relates. The logical inquirer may ask how a company which has ceased to exist can have any assets. But when the legislature authorized the making of a winding-up order in the case of a dissolved company it must be presumed to have intended such order to be effective and, to result in the collection and distribution of assets. To hold that the legislature, has authorized the collection of the assets of a dissolved company, but has withheld the power of recovering these assets, would be to attribute a singular ineptitude to Parliament." The burden of those passages is, I think, that it must never be forgotten that the statutory provision of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the summons. This point has no materiality for my present purpose. The second point decided was that if proof of conduct of business entered into by the bank was necessary to the existence of jurisdiction in the English courts to wind up the bank under the Companies Act, 1929, section 338 (1) ( d ) ( i ), that conation was satisfied on the evidence. The third point decided was (I read from the headnote): "That in the case of a foreign corporation (such as the bank) which had been dissolved and extinguished in the country in which it was established, it was not necessary as a statutory condition of jurisdiction in the English courts to wind them up to prove that they had, before their dissolution, established at some place in England a branch or other business place, and that that business had ceased: it was sufficient that there were assets of the bank in this country, and persons here claiming as creditors of the bank or said to be indebted to it, as being indicia of a business in some sense formerly conducted here." Having dealt with the first point, Evershed M.R., whose judgment was the judgment of the court, said this [1951] Ch. at p. 125 : "But I agree with Harman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. The Master of the Rolls then proceeded to discuss the circumstances in which the court will exercise its discretionary jurisdiction. He continued : " Prima facie if the local law of the dissolved foreign corporation provided for the due administration of all the property and assets of the corporation wherever situate among the persons properly entitled to participate therein, the case would not be one for interference by the machinery of the English courts. In the present case there are substantial assets standing in the name of the bank or its liquidator, and there are persons within the jurisdiction having claims to participate in the distribution of those assets. At the same time, by reason of the total extinction in Russia of the bank and the absence of any machinery under Russian law for the due distribution of the assets among the persons regarded as properly having claims upon them, there would be, unless the machinery of winding up under the Companies Act is available, no means of any kind existing for the administration of the English assets. The existence of assets here, the presence here of persons claiming as creditors of the bank or said to be indebted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y incorporated outside Great Britain which has been 'carrying on a business in Great Britain...', is intended (subject to the suggestion of Jenkins, L.J.) no more than a reference to the fact that some commercial subject-matter on which a winding up order can operate is a natural and necessary requisite for the exercise of winding-up jurisdiction. In my judgment, therefore, the language of sub-section (2) does not qualify the conclusion which I have reached on Sub-section (1)." Finally, he states what I take to be his general conclusions on this point: "I think, that in circumstances such as exist in the present case, it is unnecessary as a foundation for a winding-up order to prove that the bank had any branch or office in England or carried on their business operations in England from some established or specific or identifiable place of business; and that Eve J. had jurisdiction to make the order which he made in May, 1932, apart from the matter on which he expressly relied." In my view, therefore, that case is authority for the proposition that I have jurisdiction to make a winding-up order and that, further, I should be justified in exercising that jurisdiction, if I can f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
