Scottish Court of Session Decisions

The Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 188, enacts—“(1) Every liquidator appointed by a company in a voluntary winding-up shall, within seven days from his appointment, send notice by post to all persons who appear to him to be creditors of the company that a meeting of the creditors of the company will be held on a date, not being less than fourteen nor more than twenty-one days after his appointment, and at a place and hour to be specified in the notice, and shall also advertise notice of the meeting once in the Gazette and once at least in two local newspapers circulating in the district where the registered office or principal place of business of the company was situate; (2) at the meeting to be held in pursuance of the foregoing provisions of this section, the creditors shall determine whether an application should be made to the Court for the appointment of any person as liquidator in the place of or jointly with the liquidator appointed by the company, or for the appointment of a committee of inspection, and if the creditors so resolve an application may be made accordingly to the Court at any time, not later than fourteen days after the date of the meeting, by any creditor appointed for the purpose at the meeting; (3) on any such application the Court may make an order either for the removal of the liquidator appointed by the company and for the appointment of some other person as liquidator, or for the appointment of some other person to act as liquidator jointly with the liquidator appointed by the company, or for the appointment of a committee of inspection either together with or without any such appointment of a liquidator, or such other order as, having regard to the interests of the creditors and contributories of the company, may seem just.”

On February 23, 1912, J. H. Marlow, 54 Marchmont Crescent, Edinburgh, representative of Minton, Hollins, & Company, Stoke-on-Trent, creditors of Messrs Cherry & Company, Limited, tile layers, Glasgow, presented a petition to he First Division under section 188 of the Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69) for the appointment of a committee of inspection in the voluntary winding-up of Cherry & Company, Limited.

The petition stated “That Cherry & Company, Limited, was registered and incorporated on the 26th December 1901, and its registered office is situated at 215 St Vincent Street, Glasgow. The capital of the company is £2000 sterling, divided into 1980 5 per cent. preference shares and twenty ordinary shares of £1 each.

“At an extraordinary general meeting of the shareholders of the company, held on 22nd January 1912, the following extraordinary resolution was duly passed—‘That it has been proved to the satisfaction of this meeting that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same, and accordingly that the company be wound up voluntarily.’ Mr George A. D. Scott, writer, 170 Hope Street, Glasgow, was appointed liquidator. …

At a meeting of the creditors of the company convened by the liquidator, held at Glasgow on 9th February 1912, it was decided that application be made to the Court for the appointment of a committee of inspection in name of the petitioner, and that the names of John Henry Marlow, Edinburgh, representative of Messrs Minton, Hollins, & Company, Stoke-on-Trent (the petitioner), and Robert Watson, tile layer, 14 Dundrennan Road, Langside, Glasgow, be suggested for appointment as members of that committee.”

The prayer of the petition was as follows—“May it therefore please your Lordships, after such intimation and service, if any, as your Lordships shall think fit, to appoint the petitioner John Henry Marlow and the said Robert Watson, or such other persons as to your Lordships may seem fit, as a committee of inspection in the voluntary winding-up of Cherry & Company, Limited, as authorised by the said statute. …”

The petition appeared in the Single Bills on 27th February, when counsel for the petitioner moved the Court to make the appointment craved. The Court continued the petition till the following day in order that evidence of the liquidator's consent might be obtained. On 28th February counsel for the petitioner produced a letter from the liquidator consenting to the prayer of the petition being granted.

The Court granted the application.