TMI Blog1961 (2) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... had been paid, however, the liquidator had in hand a sum of 857,654 available for distribution among the members of the company. The capital of the company included a class of preference shares of the nominal value of 10s. each which conferred on the holders, while the company was a going concern, the right to a cumulative preferential dividend at the rate of 7 per cent. and also further participating rights, and, on a winding up, the right to the return of capital in preference to any repayment of capital on the ordinary shares, together with the arrears of the fixed cumulative preferential dividend down to the date of the return of capital. Some 1,311,810 preference shares had been issued and 813,322 4s was required to repay the capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the persons named in the schedule the total amounts against their names. The Registrar of the Companies Court adjourned the summons into court. R.B. S. Instone for the Liquidator. E. Blanshard Stamp for the Amicus Curiae. The following case, in addition to the cases referred to in the judgment, was cited in argument: Welton v. Saffery [1897] A.C. 299 ; 13 T.L.R. 340, H.L. JUDGMENT Buckley, J. stated the facts substantially as set out above and continued: The question is whether, in the circumstances, the court should dispense with the settlement of the list of contributories under the proviso to section 257(1) of the Companies Act, 1948. That subsection provides : " As soon as may be after making a win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary to consider what subsequent steps have to be taken in a winding up. In that connection I refer to section 265 of the Act, which provides: "The court shall adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled thereto." In Phoenix Oil and Transport Co. Ltd. In re ( No, 2 ) [1958] Ch. 565 ; [1958] 2 W.L.R. 126 [1958] 1 All. E.R. 158 ; [1958] 28 Comp. Cas. 359, a decision consequent on the order made by Roxburgh J. in the earlier proceedings, where he dispensed with the settlement of the list of contributories, Wynn-Parry J. held that section 265 required an order of the court before the liquidator of a company in compulsory liquidation was entitled to distribute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as may be requisite to enable the return to be made. The schedule or list shall be in the form 70 in the appendix with such variations as circumstances shall require, and the liquidator shall send a notice of return to each contributory. " That rule does not lay down any regulations about the evidence which is to support the liquidator's application to the court for an order under section 265. It merely prescribes the form which the order shall take unless the court otherwise directs. I apprehend that the court, when considering an application for an order under section 265, would always require to be furnished with evidence satisfying it that the persons whose names were set out in the schedule referred to in rule 120 were in fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which was primarily in the mind of the draftsman was that, where partly paid shares were concerned, there would be persons anxious to ensure that their names should not appear in the list of contributories because they would be anxious to avoid being called upon to contribute to the assets of the company. But it has long been recognised that for the purposes of settling the list of contributories it is not only the partly paid shareholders who are contributories but all the persons who are entitled to participate in the winding up, and of course shareholders who have parted with their shares may, in some circumstances, be put on the list of contributories. I think that the court ought not to be very ready to dispense with the settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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