9911796707
TMI Blog1941 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of the company before 1931, when he resigned his directorship, and was by profession an accountant, duly assumed office as liquidator and in that capacity continued to carry on the business of the company until at least April 21, 1939. On that date the petition was submitted to the Court, on which, on May 9, 1939, an order was made for the winding-up of the company by the Court. In the compulsory liquidation the applicant, F.E. Bendall, was in due course appointed liquidator. The applicant's investigation of the affairs of the company discloses the following material facts : first, that Houston as liquidator distributed dividends amounting to 10s in the to nearly, but not quite, all of the creditors of the company at the date of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encement of the winding-up. It cannot, in my judgment, make any difference whether the obligation be in respect of rent or rates or goods, if it is incurred in the due course of winding-up and the condition is satisfied that the continuance of the business is necessary for the beneficial winding-up. See National Arms and Ammunition Co., In re [1885] 54 L.J. Ch. 673 (and particularly per Lord Justice Bown). The test will be the same whether, as is the more usual case, the liquidator, having discharged the obligation, claims to be allowed it in his accounts, or, as here, the post-liquidation creditors, not having been paid, claim to rank in front of the pre-liquidation creditors. There can be no question of the two classes ranking pari p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of the company, not with a view to its continuance." The liquidator has sworn that at the time of his appointment as liquidator on March 28, 1938, he looked into the position of the company and came to the conclusion that the company would be able to pay 20s. in the , provided that the assets could be gradually realised to advantage, and that he decided that it would be to the benefit of the creditors and also of the shareholders that he should continue to carry on the business of the company, and he has further sworn that the carrying on of the business was a mercantile necessity and that it was carried on for the benenficial winding-up of the affairs of the company. Those statements have been somewhat vaguely challenged, but the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statutory power of carrying on the business with a view to the beneficial winding-up of the company. It is possible that, had he been endowed with greater foresight, he might have acted differently, but I do not think Sir George Jessel meant by the words which I have cited that an objective standard should be set up after the event, and by this the conduct of the liquidator judged. It is sufficient if he, bona fide and reasonably, forms the opinion that the carrying on of the business is necessary for the beneficial winding-up of the company. His reasonable opinion, like that of other men, may be falsified by events. It follows from what I have said that the post-liquidation creditors must be paid before any further payment is made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of their claims in priority to any payment to such of the pre-voluntary liquidation creditors as received no dividend. As to the third question, the respondent Houston is entitled to be paid remuneration, to be fixed by the Registrar, as part of the proper costs, charges and expenses of the liquidation. The matter must be referred to chambers to fix the amount. With regard to the question whether the applicant ought to take any steps to recover from such of the pre-liquidation creditors as have been paid a dividend any part thereof for the purpose of paying in full (or alternatively pari passu with pre-liquidation creditors) the claims of post-liquidation creditors remaining undischarged, it would be perfectly useless for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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