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TMI Blog1940 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... d otherwise as to the construction of the articles, he could have made an order for rectification, and he held that the Court had no jurisdiction so to do, even assuming that the articles of association were not in accordance with the proved intention of the two personal defendants and the late Frank Stanley Scott at the time when the articles were signed by them. Bennett, J., ordered the plaintiff to pay the defendants their costs of the action and one quarter of their costs of the counterclaim. The plaintiff appeals to this Court from the order of Bennett, J., and the defendants have given notice of cross-appeal from his decision on the question of rectification in the event of this Court being of a contrary opinion to that expressed by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 10, 1937, and under the terms of his will the plaintiff, who was his widow and sole executrix, became entitled to the 3,400 preference shares and the 100 ordinary shares of the company which were standing in the name of Frank Stanley Scott at his death. In due course the plaintiff claimed to be placed on the company's register of members in respect, of the 3,400 preference shares and the 100 ordinary shares. Her right to be registered in respect of the preference shares has never been questioned but, as already stated the two personal defendants claimed that under the articles of association the plaintiff is bound to offer to them the 100 ordinary shares, and that they had the right to acquire them at par, although we understand that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of a company incorporated under the appropriate statute or statutes for the application to either the memorandum or articles of association of the principles upon which a Court of equity permits rectification of documents whether inter partes or not. The memorandum and articles of association of any company which it is proposed to incorporate must be signed by the requisite number of persons who desire its incoporation and must comply with the statutory requirements in respect of registration. In the present case the material statute is the 1908 Act. These requirements are: (1) the delivery to the Registrar of Companies for that part of the United Kingdom in which the registered office of the company is stated by the memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charter of the company and becomes binding on it and its members. The legal entity only comes into existence as a corporate body distinct from the subscribers to the memorandum and articles registered upon registration. (See Sections 14, 15, 16 and 17 of the Companies Act, 1908, and Sections 12, 13, 15 and 20 of the Companies Act, 1929). In all cases any change in the name or constitution of the company must be registered with the Registrar. In some cases the alteration is not effective until it is registered for example, in the case of the change of name of a company (see Section 19 of the 1929 Act), or in the case of a reduction of capital (see Sections 55 and 58 of the 1929 Act); while in other cases the failure to register is made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification of the memorandum or articles if the Court should think fit to make such an order. It is not without significance that during the whole of the long period that it has been competent to incorporate joint stock companies under general statutes there is only one case in which the question has been raised whether the memorandum or articles of such a company can be rectified by the Court (see Evans v. Chapman [1902] 86 LT 381) . This case came before Joyce, J., on a motion in an action to rectify the articles of association. It was apparently admitted on the motion that the mistake sought to be rectified was solely due to a clerical error. The nature of the interlocutory relief sought is not stated in the report. Joyce, J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o" having been inserted owing to a clerial error, and the shareholders who controlled more than one-fourth of the voting power opposed the passing of any special resolution to put the mistake right. It was argued that in such a case the hardship on the ordinary shareholders must be capable of remedy by rectification. We think the short answer to such a case is that the proper remedy would be to petition the Court for an order for the compulsory winding up of the company, on the ground that it was in the circumstances just and equitable so to do. We respectfully agree with the refusal of Bennett, J., to make any order for rectification. There remains the question: can the plaintiff insist on having her name registered as the holder of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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