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TMI Blog1944 (6) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the company during their stay, and at which interviews were held and to which correspondence was addressed. The company kept banking accounts in London at William Brandt Sons and Henry Schroeder Co. The directors visiting England had full authority to enter into contracts on behalf of the company and to operate the banking accounts. Numerous orders were in fact given and contracts entered into upon such visits". These allegations are supported by an affidavit of Leo Rabenek, a former director of the company. He was the director who came to England on behalf of the company in the years 1910 and 1912 and had planned to come in 1914. On each occasion he brought with him supplies of the company's notepaper for use during his visit and he gives a list of the manufacturers and brokers with whom the company dealt. From this list I should gather that the contracts which the company made in England were for the purchase of machinery and cotton for use in their business in Russia, and not contracts for sale of their manufactured goods, but even so the purchases were of a character essential to the conduct of the company's business. The visits of directors to England were perforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct Russian name and re-served. Notice was given to the Treasury Solicitor as representing the Crown who, if the company has been dissolved, would or might be entitled to the assets of the company as bona vacantia. This direction was given in order that the Court might have argument as to its jurisdiction to make the order for which the petitioners ask. As a result I have had the advantage of a full argument for the petitioners and for the Treasury Solicitor. The petitioners seek to wind up the company as an unregistered company under Part X of the Companies Act, 1929. There is no doubt that it is, or was, an "unregistered company" within the meaning of section 337. That being so the petitioners allege that I have jurisdiction to wind it up under section 338, which so far as material is as follows : "(1) Subject to the provisions of this Part of this Act, any unregistered company may be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with the following exceptions and additions 1( a ) If an unregistered company has a principal place of business situate in Northern Ireland, it shall not be wound up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by the Russian decree of March 4, 1919, but this would not, I think, affect the sterling debt and, although that may be a disputed debt and the evidence in support of it is rather shadowy. I do not think that the general rules that a winding-up petition is not a legitimate means of seeking to enforce payment of a petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by a company applies to the case of a petition against a Russian company, which has been subjected to the decrees to which I have referred, since an action in this country to establish the debt would be impossible. In reaching this conclusion I am supported by the decisions of Benett, J., in the case pf Russian and English Bank. In re [1932] 1 Ch. 663 , and Maugham, J., as he then was, in Russian Bank for Foreign Trade, In re [1933] Ch. 745. The second point can be readily disposed of as counsel are agreed that, if the company ever carried on business in England, it had ceased to do so long before the presentation of the petition. The case then boils down to the single issue, did the company ever carry on business in England ? I must, of course, approach t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutes. His observation seen to me to apply with still greater force to a change of language in the same statute. Where the Legislature intended to make the possession of an established place of business a condition of the application of any particular provision it has said so; for example, in Part XI where the possession of such a place of business is the essential condition of the application of that part of the Act to a company incorporated outside Great Britain, and in section 145 defining which companies incorporated outside Great Britain must comply with the Requirement of the Act as regards particulars with respect to directors to be included in trade catalogues, etc. The Legislature did not use this phrase in section 338. Had it been intended to confine the application of that section to companies with an established place of business, it would have been easy so to provide by adding a sub-section to the effect that ''no unregistered company shall be wound up under this Act unless it has or has had an established place of business in Great Britain". The Legislature did not think fit so to provide, and I do not think I should be justified in reading any such limitation into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant and the Court of Appeal held that the service was valid, as the defendants were carrying on business so as to be resident within the jurisdiction. Romer, L.J., states the law (71 L.J.K.B., at p. 286; [1902] 1 K.B.., at p. 349) in these words: "The result of the authorities appears to me to be that if for a substantial period of time business is carried on by a foreign corporation at a fixed place of business in this country, through some person who there carries on the corporation's business; as their representative, and not independent business, then for that period the company must be considered as resident within the jurisdiction for the purpose of service of a writ". I think that is a reasonable test to apply under section 338 (1). It is not necessary for me to consider whether, applying it, I should have reached the same conclusion as the Court of Appeal reached on the facts of that case, but I feel no doubt that, applying this test to the facts of the present case, the company was carrying on business within the jurisdiction within section 338 (1). For nine consecutive years directors of this company visited England and bought machinery and raw cotton the acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess here through those agents, in the same way as foreign merchants often carry on business in this country by means of agents. The jurisdiction to wind up a company is a purely statutory one under the Companies Acts. If I were to adopt Mr. Farwell's argument, I must come to the conclusion that, in every case in which a foreign company has had any dealings in this country whether the company is established in China, or Japan, or Australia there is jurisdiction to order it to be wound up. I am decidedly of opinion that the Act is confined to English companies, and foreign companies carrying on business in England with, so to speak, a residence of their own a branch office in this country. In the cases which have been cited of orders made to wind up foreign companies, the companies had an office in England, but that is not so in the present case." As to the correctness of the decision there can, I think, be no doubt, for the company had no assets here and there was nothing to administer. If and so far as it purports to suggest that an established place of business is a necessary ingredient in founding jurisdiction, I venture respectfully to diner; but I do not think this is the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that to succeed the petitioners must establish facts which would have brought the respondent company within Part XI of the Act, as having aft established place of business. I have so far considered only section 338 (1). I do not think sub-section (2) affects the position. I respectfully agree with the observations of Bennett, 'J., in Russian and English Bank, Ltd., In re 5 , that this sub-section was not intended, to alter the law as it had been decided to be under the Acts of 18b2 and 1908. I should add that this view is further supported by the observations of Lord Atkin in Russian and English Bank and Guedalla v. Baring Bros. Co. (No. 3) (105 L, J. Ch., at p. 183; [1936] A. C, at p. 424), where his Lordship said : " I for myself come to the conclusion that section 191 of the Act of 1928 was introduced as section 338 (2) into the Act of 1929 for the removing of doubts and to make it dear that the words if the company is dissolved were meant to apply to an incorporated company dissolved according, to the law of its constitution, and not intended to give a new enabling power only applicable to a company which should cease to carry on business after the passing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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