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TMI Blog1963 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ng put into compulsory winding up. On November 28, 1962, the landlord instituted proceedings against the company for possession of the shop, for a certain sum as arrears of rent, and for mesne profits. On January 9, 1963, they in fact obtained judgment in that action. In the meantime the company had obtained an offer from a prospective purchaser for the lease at the price of 3,000. In those circumstances, the landlords agreed to hold their hands under the judgment with a view to the company continuing in negotiation for the sale of the lease and making application to the landlords for a licence to assign. In the events which have happened, the company has come to terms with the proposing purchaser for the sale of the leasehold property to him at the price of 3,000. But, of course, the claim of the landlords for their arrears of rent and their coats in that action had to be met. There is, moreover, a charge upon the leasehold interest securing the sum of 300 due to a company which had made a loan to A.I. Levy (Holdings) Ltd. The solicitors who have acted for the company in the negotiations for sale of the lease also claim to have a lien of some kind in respect of costs which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brought before the court, it must have regard to all the surrounding circumstances, and if from all the surrounding circumstances it comes to the conclusion that the transaction should not be void, it is within the power of the court, under the 153rd section, to say that the transaction is not void." That is a reference to the section in the Act of 1862 corresponding to section 227. It is a statement of jurisdiction in broad and general terms which does not suggest that it is confined to making an order after a winding-up order has been made. In International Life Assurance Society In re [1870] L.R 10 Eq. 312 in fact the winding-up order had already been made, and, therefore, the case does not give me any authoritative assistance in deciding the point which has been raised before me. The next case I should mention is a decision of Chitty J. in Carden v. The Albert Palace Association [1887] 56 L.J. Ch. 166, in which the court, having been satisfied that the transaction there in question was for the benefit of all possible parties, did make the order under section 153 of the Act of 1862 before any winding-up order had been made in respect of the company. It is right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idator, if a liquidator is subsequently appointed, and it seems tome that to attempt to deal with the matter, not only by implication but also entirely conditionally, is something which this section does hot enable me to do. If there is never a winding-up, I agree my order would be without operation ; it would be completely otiose if this petition before me is ultimately dismissed or withdrawn. But, if the petition results in the making of a winding-up order, then I think it is for the liquidator to deal with the matter as he thinks proper. "Then his Lordship referred to Carden v. The Albert Palace Association 56 L.J. Ch. 166 , and of that case, he said [1948] Ch. 188, 191: "That case, so far as it has attracted legal attention, is cited in only a casual way in one of the text-books on company law, and is not referred to in Buckley or Palmer and, indeed, has never been regarded as an authority for anything at all. On general principles, I feel bound to say that unless there is in progress a winding-up by the court I am powerless to make any order under this section and I must leave it to the liquidator after his appointment, though, of course, if there is no winding up no ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing creditor opposed the making of the order. For myself, with the utmost respect to Vaisey J. I find it difficult to accept his statement that the object of the section is to ensure that any transaction entered into after the commencement of the winding up shall be "subject to review by the liquidator" [1948] Ch. 188, 190. It appears to me that the object of the section is to protect the interests of the creditors from the possibly unfortunate results which would ensue from the presentation of a petition, and to protect their interests as much during the period while the petition was pending as after an order has been made on it. What the section provides in its present terms is that any disposition of the property of the company made after the commencement of the winding up shall be void in the winding up of the company unless the court otherwise orders; that is to say, if and when the company comes to be put into liquidation the transaction is to be as if it had never taken place. It does not appear to me, with the utmost respect to Vaisey J., that the language of the section necessarily requires an order to be made in respect of a company which is in fact being wound up b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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