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TMI Blog1969 (3) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... d Oppenheim." The circumstances leading up to the application are these. The company, London Flats Ltd., was incorporated on February 18, 1936, as a private property company. On February 19, 1963, it went into liquidation. At that time the authorised and issued share capital of the company was 45,000, divided into 45,000 shares of 1 each. 39,900 of these were held by the late Mrs. Victoria Pauline Oppenheim, 15,000 of those 39,900 being held by her as nominee for her husband, the late Mr. Abraham Louis Oppenheim. 5,000 shares were held by their son, the present respondent, Mr. Stanley Wilfred Oppenheim, and the balance of 100 by the applicant, Mr. Lyon, who is a chartered accountant who had formerly been associated with Mr. Oppenheim, senior, in his group of companies, and who for some years prior to 1958 was a director of the company. On the company going into liquidation Mrs. Oppenheim was appointed liquidator. Mr. and Mrs. Oppenheim, senior, had three other children : Mr. Henry Myer Oppenheim, who gave evidence in this case, and two daughters, Mrs. Astaire and Mrs. Burkeman. The main asset of the company was a block of flats at St. John's Wood known as "Viceroy Court." In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present at first Mr. Davies, one Peacock of Mr. Lewis' firm, Mr. Jacobs of the respondent's solicitors, a stenographer and Mr. Gorman of my solicitors. The respondent objected to the presence of anyone other than the registered shareholders and consequently all persons other than the respondent and myself withdrew. 10. I began the meeting by reading the notice . . . and the respondent then insisted that a chairman be appointed, inviting me to propose a chairman. I proposed myself and the respondent then proposed an amendment naming himself as chairman. On a show of hands each of us voted for our respective nominees and the respondent then demanded a poll and cast the votes to which he was entitled by reason of his holding of 5,000 shares in favour of the amendment, no vote being taken on the resolution itself. 11. The respondent then declared himself to be chairman (although I voiced my objection) and then stated that as chairman he had the right to have a stenographer present to take notes. Despite my strong objections and my reminder to him that it had been agreed before the meeting that it was to be held with only members present, the respondent called in the stenographer who re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the evidence which he gave in the witness box that he left the meeting before the respondent had proposed himself as liquidator. In those circumstances, I shall have to consider later whether the respondent was validly appointed liquidator. The present summons was issued on August 12, 1963, and on October 7, an order was made by Pennycuick J. by consent continuing an injunction which had originally been granted by the vacation judge which restrained the respondent over the final hearing of the originating summons from "acting as or holding himself out in any way as being liquidator of the above-named London Flats Ltd. and from dealing in any way whatsoever with any of its assets save for instructing the bankers of the said company to transfer the moneys now standing to the credit of the said company on current account to deposit account." It has taken over five and a half years for the summons to come on, but I do not think that any useful purpose would be served by trying to apportion blame for that. On October 10, 1963, Mr. Oppenheim, senior, died. By his will, which was dated May 15, 1963, he appointed as his executors a Dr. Kelsey and another gentleman who renou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y before granting me such letters of administration; the total duty due in respect of Mrs. Oppenheim's estate is estimated to be 750,000, but there is also owing the sum of 176,500 as estate duty on Mr. Oppenheim's estate. A very substantial part of Mrs. Oppenheim's estate consists of her beneficial interest in 24,900 out of the 39,900, shares in London Flats Ltd. which stand in her name, the proportion of the funds of London Flats Ltd. distributable to Mrs. Oppenheim's estate being approximately 443,220. I am informed by my solicitors and believe that if it were possible for me to satisfy Barclays Bank Ltd. (where the account of London Flats Ltd. now stands) that there was a prospect of a distribution of these moneys to Mrs. Oppenheim's estate within a short period the bank would be willing to make an advance in the like sum to enable me to make payment to the Estate Duty Office ; this payment, together with other sums now available to me, would enable me to obtain a grant to Mrs. Oppenheim's estate." Many attempts have been made to get the question of a liquidator agreed, but all in vain. The way in which it appeared from the applicant's side can be illustrated from a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly as he (the respondent) could I will come back to those matters in a moment and, secondly, because he did not want the company to be charged with a large amount for fees when he was the second largest shareholder in the company, holding some 11 per cent, of the issued capital. As regards the suggestion of joint liquidators, he said in evidence that he made enquiries of certain of the leading London firms of chartered accountants, and he got the impression that they were not in favour of joint liquidators. Now I must say something more about the matters which, according to the respondent, require further investigation. According to him, his father and mother embezzled the funds of the company during their lifetimes by pocketing premiums which had been charged on the grant of leases of Viceroy Court where there were, I understand, some 90 or so flats, and the suggestion is that the money so acquired was in part placed in bank accounts overseas, in part invested in jewellery, and in part retained in cash in various currencies. It said that two large boxes containing cash and jewellery to the value of some 300,000 were removed by the respondent's brothers-in-law from his father's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial notice, and we must ascertain what within the meaning of the Act is a meeting, and whether one person alone can constitute such a meeting. It is said that the requirements of the Act are satisfied by a single shareholder going to the place appointed and professing to pass resolutions. The 6th and 7th sections of the Act show conclusively that there must be more than one person present; and the word 'meeting' prima facie means a coming together of more than one person. It is, of course, possible to show that the word 'meeting' has a meaning different from the ordinary meaning, but there is nothing here to show this to be the case. It appears therefore to me that this call was not made at a meeting of the company within the meaning of the Act. The order of the court below must be reversed," and the other members, Brett and Amphlett, JJ.A., of the court concurred in that judgment. That case was followed by Sir George Jessel M.R. in In re Sanitary Carbon Co. [1877] WN 223. That was a winding-up petition by an unpaid judgment creditor. "It was opposed by the company on the ground that a 'meeting' of the company had been held at which one shareholder only, named Worswi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to the case of a single shareholder : "Held, therefore, that there had been a sufficient compliance with the requirements of the memorandum and articles, and that the new preference shares had been validly issued." Warrington J., after referring to the two cases which I have already cited, said, at page 169 : "But now what I have to consider is whether this is not one of the cases referred to by Lord Coleridge C.J. as one in which it may be possible to show that the word 'meeting' has a meaning different from the ordinary meaning. For that purpose I think I am entitled to see what is the object of the provision in the memorandum of association. Plainly, as I have already said, that object is that before affecting the rights of the preference shareholders it shall be necessary to obtain and record in a formal manner the assent of the preference shareholders to that course. I think I may take it also that the persons who framed this document may have had, and must be taken to have had, in their minds the possibility at all events that this particular class of shares might fall into the hands of one person. There is nothing to prevent it in the constitution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of himself as liquidator was a nullity. But in case that view should be wrong and this matter should go further, I ought to add that, on the evidence, I should have felt obliged to make an order under section 304(2), removing the respondent and appointing an independent liquidator in his place. I have already stressed the reasons why, in my judgment, it is essential in this case that the liquidator should be wholly independent of the Oppenheim family. A number of cases were cited to me which show that the court has a wide discretion, but I need not, I think, refer to them, because Mr. Settle, for the respondent, concedes that if I take the view that it is for the benefit of the liquidation, and in the interests of everyone concerned to make such an order, then I am entitled to do so. What I propose to do, therefore, is to refer the matter back to chambers for the appointment of an independent liquidator. I do not propose to appoint the applicant's nominee, not because there is the slightest personal reflection on him, but because the applicant himself in his second affidavit says this: "Mr. Walker is, I understand, still willing to act, though I now understand that (alth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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