9911796707
TMI Blog1961 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... that against this judgment the company proposes to appeal in due course. [His Lordship referred again to the facts and continued:] The company's answer to the petition is two-fold. First of all, it is said that the petitioners' alleged debt is a debt which is bona fide disputed by the company; and, secondly, it is said that the company is not insolvent. I will dispose of the second point first. Insolvency in the relevant sense is explained in Buckley on the Companies Acts (1957), 13th ed., p. 460, in this way: "The particular indications of insolvency mentioned in paragraphs ( a ), ( b ) and ( c )" I interpolate the words "of section 223" " are all instances of commercial insolvency, that is of the company being unable to meet current ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et Petroleum Co. Ltd. All these are apart altogether from the petitioners' alleged debt. As I said, I am satisfied on the evidence that this company is insolvent. I now turn to the question of disputed debt; and I wish to make one or two preliminary observations. First of all, I have seen in the witness-box Harold Stanley Tweed, the managing director of the company, and Roger John James Field, the general manager of the petitioners. They have given evidence and been cross-examined before me and where their evidence conflicts I have no hesitation in preferring the evidence of Field to that of Tweed. Secondly, the account between the petitioners and the company was a running account. That is to say, that the nature of the transactions betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation in rejecting it because I am satisfied that at all material times the company was very heavily indebted to the petitioners on the balance of account. What is said is that, although there is no dispute that the petitioners were at all material times creditors, there is a dispute as to the amount of their debt and that such a dispute is within the rule that the court will not make a winding-up order on a disputed debt. That rule is referred to in Buckley on the Companies Acts, 13th ed., at p. 451, where it is said : "A winding-up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company." Then it goes on to say : "But, of course, if the debt is not disputed on some substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from being insolvent, this company is carrying on a thriving business, which I am asked to stop, merely because there is a quarrel between the company and their contractor as to what is due to him." Similarly, In re London and Paris Banking Corporation [1874] LR 19 Eq. 444 was also a case which was concerned with a statutory demand; and the point there was really whether the company had neglected, within the wording of the statute, to pay a debt which it disputed. After referring to the Brighton Club case [1805] 35 Beav 204, to which I have already referred, Sir George Jessel M.R. said [1874] LR 19 Eq. 444, 448: " ... I should be bound by authority (even if I entertained a different opinion, which I do not) to hold that if the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debts..." Then section 224 (1) provides: "An application to the court for the winding up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately." From those sections it appears that the only qualification which is required of the petitioners in this case is that they are creditors and about that, as I have said, there is really no dispute. Moreover, it seems to me that it would, in many cases, be quite unjust to refuse a winding-up order to a petitioner who is admittedly owed moneys which have not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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