TMI Blog1961 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioning creditor, indicated that he could not press his petition and would consent to having it dismissed. But he contended that the petitioning creditor should not be ordered to pay costs. It was formerly the practice that, where the petitioning creditor elected not to open the petition and consented to its dismissal he must, as a matter of course, pay the costs of the company and also those of the opposing creditors [see British Electric Street Tramways Ltd. In re [1903] 1 Ch. 725]. But this practice was subjected to an important modification in Sharman Ltd. [1957] 1 WLR 774 ; [1957] 1 All. ER 737 , in which Wynn-Parry J. held that where a creditor who is a judgment creditor presents a petition upon which as between himself an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not report, as I have said, how it came into existence or how long it has continued, and there is no authority which stands in the way of any such review. It appears to me that, at any rate in the case of a judgment creditor, the practice ought to be varied. It is perfectly true, as is pointed out in the judgment of Buckley J. in British Electric Street Tramways In re [1903] 1 Ch. 725, that the petitioner who issues a petition invites creditors to attend, and it may be that the present practice is perfectly fair in the case of a creditor who is not a judgment creditor, as to whose position I say no more, but where a judgment creditor presents a petition and is only deprived of what otherwise would be his right by the circumstances t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition. What is reasonable depends in each particular case on all the circumstances and it would be unwise to attempt any more precise formulation. In the present case, the facts summarised above show that at the time when the petition was presented the petitioner knew that the undertaking of the company was in course of realisation by the receiver, and that what was proposed, without opposition from any unsecured creditors, was that, on the completion of the realisation, the company should be put into voluntary liquidation. Equally, the petitioner must have known that any person applying for a compulsory order would encounter the opposition of the unsecured creditors of greater weight. Its own debt was less than one-half per cent, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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