9911796707
TMI Blog1960 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... debts, disregarding those owed to the subsidiary companies of the company, amount of 18,328 odd, that being a sum 800 larger than the debt owed to the petitioning creditors. There are no supporting creditors. There are also owing by the company debts amounting to about 99,041 to its own subsidiary companies, but, for the purposes of this judgment, I propose to disregard those debts. The position, therefore, is, disregarding those debts, that there is one creditor with a debt of 17,000 odd who wants the company wound up, and a number of creditors with debts amounting to over 18,000 who do not want the company wound up. Section 222 of the Companies Act, 1948, under which this petition is brought provides that "A company may be wound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a winding up by the majority was not conclusive. The exercise of the discretion in favour of a winding-up order was not confined to cases where the petitioning creditor showed that the opposition was founded on irrelevant or improper motives or that the company's business was being conducted fraudulently. Karsberg Ltd. In re [1956] 1 W.L.R. 57; [1955] 3 All. E.R. 854, C.A. 26 Comp. Cas. 196 distinguished." Lord Evershed M. R. said [1960] 1 W.L.R. 1283, 1285; [1961] 31 Comp. Cas. 254 , 256 : "It appears from the evidence before us that the company has no assets whatever, and no attempt has been made on the respondents' side to show that it has any assets or any prospects of successful business. " He continued [1960] 1 W.L.R. 1283, 1286; [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is conclusive that it is not sufficient merely to count heads, but it seems to me that it goes no further than this: even if, after counting heads, one finds that there is a majority opposed to liquidation, one must still look at the position of the company and decide whether it is just and equitable to wind up the company. In the Vuma case ( supra ) it was decided that the company had no assets and no prospects of successful business, and on those particular facts the Court of Appeal considered that it was right to wind up the company. But it seems to me that it must still be right, having regard to the terms of section 346, to have regard to the wishes of the majority of the creditors. Although those wishes may not be conclusive they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiders that the petitioner has been acting reasonably. I have found it impossible to derive that proposition from anything in the judgment in the Court of Appeal, and it seems to me that it goes much too far. It seems to me that if it must be right to take account of the wishes of the majority of the creditors, and if those wishes are reasonable, then the court can properly refuse at their request to make a winding-up order. Mr. Instone also relied on certain specific matters in support of his contention. He pointed out that the debt of the petitioning creditor has been outstanding for at least six months, but it is to be observed that, although the debt is a judgment debt, there has so far been no attempt by the petitioning creditor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 ; [1857] 1 All. E.R. 737. The headnote reads: "A petitioning creditor asked, as a judgment creditor, for an order for the compulsory winding up of the debtor company. The petitioning creditor's judgment was for 167 5s. 11d. and 8 10s. od. costs, and the petition was opposed by a majority of the creditors for a total of 33.302 19s. 3d. and also by the company itself. The petitioning creditor, while recognising that the petition must in the circumstances be dismissed, asked that it be not ordered to pay the costs: Held, dismissing the petition, that with regard to a judgment creditor deprived, as in the present case, of the right ex debito justitiae to a winding-up order only by the opposition of a majority of the creditors, the fair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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