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TMI Blog1955 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The affidavits and the exhibits (set out above were the material which was before the judge when he dealt with the petition. We have no notes of any reasons which were expressed by the judge which led him to the conclusion that this company should be wound up, but we have been told that, while he realized the strength of the opposition of the creditors, he thought that the facts as disclosed by the evidence raised a proper case for investigation and a public examination, and he came to the conclusion that it was in the interests of the creditors that there should be a compulsory winding up, in the course of which such an examination as he thought was desirable could most efficiently and thoroughly be carried out. But the creditors do not take before us the view, nor indeed did they take the view before the judge, that it was in their interest that a compulsory winding-up order should be made, and it is for that reason that they and the company have appealed. Mr. Blackledge, for the appellants, put his case in various ways. In the first place, he said that the petitioners' debt is genuinely disputed, on the ground, first, that the petitioners are unregistered moneylenders, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the company was liable to repay them, and that that liability was merely coupled with a personal guarantee by the Fredmans which would be collateral to the liability of the company. Accordingly, I think there is much to be said in favour of Mr. Vinelott's submission that the company has not shown, upon the material which is before us, that there are grounds upon which the debts can be said to be bona fide disputed. That is a matter, however, which will have to be dealt with hereafter. But Mr. Blackledge's second point is the point upon which, in my opinion, this appeal must succeed. His point is that where (as is the case here) practically the whole of the company's creditors, both in value and in number, oppose a compulsory order, the court should regard their wishes in the matter and should not force an order upon them merely because the petitioners want it. Here there is no doubt whatever that the creditors as a whole are opposed to an order being made. They have faith in Mr. Fine, whom their committee appointed liquidator in this and in the other voluntary liquidations ; and, as the group of companies is in their view so essentially interlocked, they want the affa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to consider the wishes of all the creditors. If the majority of the creditors wish to continue the voluntary liquidation and no valid reason is shown why effect should not be given to their wishes, the court will not make a winding up order. There is nothing in the decision in In re James Millward Co. Ltd. 1940] 2 Ch. 333 ; 56 TLR. 330 ; [1940] 1 All E.R. 347 ; 10 Comp. Cas. 238 to the contrary. Here the great majority of the creditors are in favour of a continuance of the voluntary winding up and no suggestion has been made that in such a winding up the interest of any creditor will be prejudiced ;" and he dismissed the petition. Roxburgh J., in In re Fthcica Shipping Co. Ltd. [1950] 84 LIL. Rep. 507. (which was a petition for the winding up of a company which was opposed by creditors), said: " The petitioning creditor is a judgment creditor for some 60 or there abouts. He is supported by a creditor for 133 As against the company, the petitioner am his supporting creditor would be entitled to a winding up order ex debito justiciae. But it is said on behalf of Mr. Vlassopoulos, whose position I will describe in a moment, that he is a creditor for 3,000 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just. Recently Wynn-Parry J. held in In re Camphell Coverings Ltd. (No. 2) [1954] Ch. 225; [1954] 2 WLR. 204; [1954] 1 All ER. 222 (and in so holding he was following an indication of an opinion which Evershed M.R.. had expressed in an earlier case of the same name [1953] Ch. 488; [1953] 2 WLR. 1135; [1953] 2 All ER. 74) that under section 307 the court has jurisdiction to order the public examination of a director, pursuant to section 270 (1). So that by conjunction of sections 270 and 307 it will be open to the liquidator or a creditor in the existing voluntary winding up to apply to the court for directions and for a public examination of the past directors or other persons in the same way as could be done in a compulsory winding up. There is further provision which is to be found in section 334 of the Act, which is a section applicable both to compulsory and voluntary liquidations, whereby under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tringency. For my part, I think that there are no circumstances shown here, such as were shown in In re Northumberland and Durham District Banking Co. [1858] 2 De G J. 357 which should disturb the view that the majority of the creditors should have their wishes fully regarded and given effect to. Mr. Vinelott suggested that a reason personal to the petitioners why there should be a compulsory winding up is that Mr. Fine (who is the liquidator under the voluntary winding up) has, so it is said shown prejudice against the petitioners that, as appears from the evidence, the liquidator has said that the petitioners are moneylenders and usurious, and also that he ignored their position of petitioning creditors when he convened a meeting of the creditors. In my opinion that is no sufficient reason to force a compulsory order upon the majority of the creditors. I have no doubt that Mr. Fine, who is a responsible and reputable professional gentleman, will approach the petitioners' position and claims with impartiality, and if he is satisfied as to the bona fides of the debt he will treat the petitioners with complete fairness and justice. No other reason was suggested apart from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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