Companies Winding Up Act

Short title

1 This Act may be cited as the Companies Winding Up Act. R.S., c. 82, s. 1.

Interpretation

2 In this Act,

(a) "company" means any corporation, whether joint stock or otherwise, incorporated by the Legislature of this Province, or under the authority of any statute thereof;

(b) "contributory" means every person liable to contribute to the assets of a company, association or club, in the event of the same being wound up, and, also, in all proceedings prior to the final determination of the status of such persons, includes any person alleged to be a contributory;

(c) "Court" means the Trial Division of the Supreme Court, but any act hereinafter authorized to be done by the Court, and any power or authority hereinafter conferred on the Court, shall be done or exercised by any judge thereof, except in the case of acts and authorities to be done or exercised upon or after appeal from the decision or judgment of such judge;

(d) "extraordinary resolution" means a resolution passed by a majority of not less than three fourths of the members of the company for the time being entitled to vote present in person or by proxy, in cases where by the Act, charter or instrument of incorporation, or the regulations of the company, proxies are allowed, at any general meeting of which notice specifying the intention to propose such resolution has been duly given;

(e) "special resolution" means

(i) a resolution passed in the manner necessary for an extraordinary resolution, where the resolution, after having been so passed as aforesaid, has been confirmed by a majority of the members entitled according to the Act, charter or instrument of incorporation, or the regulations of the company to vote, present in person or by proxy at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, or more than one month, from the date of the meeting at which the resolution was first passed, or

(ii) a resolution unanimously passed by all the members of the company for the time being entitled to vote, present in person or by proxy, in cases where the Act, charter or instrument of incorporation or regulations of the company allow proxies, at any general meeting, of which notice specifying the intention to propose such resolution has been duly given. R.S., c. 82, s. 2.

Corporations to which Act applies

3 (1) This Act shall apply to all incorporated companies, associations or clubs, incorporated by the Legislature, or under the authority of any statute, and to all companies, associations and clubs, whose incorporation and the affairs thereof in the particulars hereinafter mentioned are subject to the legislative authority of this Province.

Act does not apply

(2) It shall not apply to any company or corporation whose Act of incorporation or any Act in amendment thereof contains express provisions for the mode of winding up such company or association. R.S., c. 82, s. 3.

Requirements

4 A company may be wound up under this Act,

(a) where the period, if any, fixed for the duration of the company by the Act, charter or instrument of incorporation thereof has expired, or where the event, if any, has occurred, upon the occurrence of which it is provided by such Act, or charter or instrument of incorporation that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up;

(b) where the company has passed a special resolution requiring the company to be wound up;

(c) when the company, though it is solvent as respects creditors, has passed an extraordinary resolution to the effect that it has been proved to the satisfaction of the members thereof that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same. R.S., c. 82, s. 4.

Winding up by Court

5 Where no such resolution has been passed, the Court may, on the application of the company, or any contributory or contributories, or shareholder or shareholders, or member or members of the company, make an order for winding up, in case the Court is of opinion that it is just and equitable that the company should be wound up. R.S., c. 82, s. 5.

Court-ordered option

6 (1) Where the Court is satisfied that it may make an order directing the winding up of a company pursuant to this Act, it may, subject to subsection (2),

(a) fix the value of each share issued by the company and held by any person who is a party to the application and who is seeking an order directing the winding up of the company and declare that any party to the application who is not seeking an order directing the winding up of the company has an option, exercisable within such time as the Court orders, to purchase all or such number of the shares as the Court orders, at a price per share which is equal to the value of the share fixed by the Court; and

(b) impose such terms and conditions on the option and the sale arising from the option as the Court thinks fit.

Limitation on power

(2) The Court shall not exercise the authority contained in subsection (1) where it appears that the company cannot by reason of its liabilities continue in business.

Appraisers

(3) The Court may appoint one or more appraisers to assist it in fixing a fair value pursuant to this Section.

Restriction on winding-up order

(4) Where a Court makes an order pursuant to this Section, it may not make an order for winding up unless it appears to the Court that the option declared by the Court pursuant to this Section has not been duly exercised. R.S., c. 82, s. 6.

Deemed commencement

7 A winding up shall be deemed to commence

(a) in case of the passage of a resolution authorizing the winding up, at the time of the passing of such resolution;

(b) in case of the making of an order directing the winding up, from the making of such order. R.S., c. 82, s. 7.

Registration in registry of deeds

8 (1) A copy of the resolution or order for winding up, certified by the liquidator, may be registered in the registry of deeds of any registration district in which the company has any real property.

Description of property

(2) Such resolution or order may be accompanied by a description of the real property belonging to the company in the district, and certified by the liquidator to be a correct description, and the registrar shall register the order and description upon payment to him of a fee of one dollar. R.S., c. 82, s. 8.

Consequences

9 The following consequences shall ensue upon the commencement of the winding up of a company:

(a) the company shall from the date of the commencement of the winding up cease to carry on its business, except in so far as is required for the beneficial winding up thereof, but the corporate status and all the corporate powers of the company shall, notwithstanding it is otherwise provided by the Act, charter or instrument of incorporation, continue until the affairs of the company are wound up;

(b) the property of the company shall be applied in satisfaction of its liabilities, and, subject thereto and to the charges incurred in winding up its affairs, shall, unless it is otherwise provided by the Act, charter or instrument of incorporation, be distributed amongst the members according to their rights and interests in the company;

(c) any transfers of shares, except transfers made to or with the sanction of the liquidators, or any alteration in the status of the members of the company, after the commencement of such winding up, shall be void;

(d) no action, suit or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court imposes;

(e) all costs, charges and expenses properly incurred in the winding up of a company under this Act, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims. R.S., c. 82, s. 9.

Appointment by resolution

10 (1) In case of a resolution for winding up, the company at a general meeting shall appoint a person or persons to be liquidator or liquidators for the purpose of winding up the affairs of the company and distributing its property, and shall fix the remuneration to be paid to him or them, and such liquidators shall furnish such security as the contributories determine.

Appointment by Court

(2) In case of an order authorizing a winding up, the Court shall appoint such liquidators and determine the security and the remuneration.

Single liquidation

(3) If one person only is appointed, all the provisions herein contained in reference to several liquidators shall apply to him.

Several liquidators

(4) Where several liquidators are appointed, every power hereby given may be exercised by such one or more of them as is determined at the time of the appointment, or at a subsequent meeting, or in default of such determination by any number not less than two. R.S., c. 82, s. 10.

Casual vacancy

11 (1) If any vacancy occurs in the office of liquidator appointed by the company, by death, resignation or otherwise, the company in general meeting may fill up such vacancy.

Court may appoint liquidator

(2) If from any cause there is no liquidator acting, either provisionally or otherwise, the Court may on the application of a contributory appoint a liquidator or liquidators.

Court may remove liquidator

(3) The Court may also on due cause shown remove any liquidator and appoint another liquidator.

Control of estate

(4) When there is no liquidator the estate shall be under the control of the Court until the appointment of a new liquidator. R.S., c. 82, s. 11.

Commission

12 If there is no agreement, order or provision fixing the remuneration of a liquidator, he shall be entitled to a commission on the net proceeds of the estate of the company of every kind which comes to his hands, after deducting expenses and disbursements, such commission to be five per cent on the amount realized, and to be in full of all fees and charges for his services. R.S., c. 82, s. 12.

Powers of directors cease

13 Upon the appointment of liquidators all the powers of the directors or other managing officers shall cease, except in so far as the company in general meeting or the liquidators sanction the continuance of such powers. R.S., c. 82, s. 13.

Directions to liquidator

14 The contributories may at any meeting pass any resolution or order directing the liquidator how to dispose of the property, real or personal, of the company, and in default of their doing so, the liquidator shall be subject to the directions, orders and instructions which he from time to time receives from the inspectors, if any, with regard to the mode, terms and conditions on which he may dispose of the whole or any part of the property of the company. R.S., c. 82, s. 14.

Appointment

15 (1) The contributories may at any meeting appoint one or more inspector or inspectors to superintend and direct the proceedings of the liquidator in the management and winding up of the estate, and in case of an inspector being appointed, all the powers of the liquidators shall be exercised subject to the advice and direction of the inspector.

Revocation of appointment

(2) The contributories may also, at any subsequent meeting held for that purpose, revoke any such appointment, and upon such revocation, or in case of death, resignation, or absence from the Province of an inspector, may appoint another in his stead.

Remuneration

(3) The inspector may be paid such remuneration as the contributories determine, and when anything is allowed or directed to be done by the inspectors, it may or shall be done by the sole inspector if only one has been appointed. R.S., c. 82, s. 15.

Description and powers

16 The liquidator may be described in all proceedings by the style of "A.B., the liquidator of" (the particular company in respect to which he is appointed) and shall have power to do the following things:

(a) to bring or defend any action, or other legal proceeding in the name and on behalf of the company;

(b) to carry on the business of the company so far as is necessary for the beneficial winding up of the same;

(c) to sell the real and personal property of the company, by public auction or private contract, according to the ordinary mode in which such sales are made, with power to transfer the whole property to any person or company, or to sell the same in parcels, and on such terms as seem most advantageous, but no sale of the assets en bloc shall be made without the previous sanction of the contributories given at a meeting called for that purpose;

(d) to draw, accept, make and endorse any bill of exchange or promissory note, in the name and on behalf of the company, and to raise upon the security of the assets of the company from time to time any requisite sum or sums of money, and the drawing, accepting, making or endorsing of any such bill of exchange or promissory note as aforesaid, on behalf of the company, shall have the same effect with respect to the liability of the company as if such bill or note had been drawn, accepted, made or endorsed by or on behalf of such company in the course of carrying on the business thereof;

(e) to take out if necessary in his official name, letters of administration to any deceased contributory, and to do in his official name any other act which is necessary for obtaining payment of any money due from a contributory or from his estate, and which act cannot be conveniently done in the name of the company, and in all cases where he takes out letters of administration or otherwise uses his official name for obtaining payment of any money due from a contributory, such money shall, for the purpose of enabling him to take out such letters or recover such money, be deemed due to the liquidator himself;

(f) to execute in the name of the company all deeds, receipts and other documents;

(g) to use the companys seal whenever necessary for any of the purposes mentioned in this Section; and

(h) to do and exercise all other acts and things necessary for the winding up of the affairs of the company and the distribution of its assets. R.S., c. 82, s. 16.

Sale of receivables

17 If after having acted with due diligence in the collection of the debts, the liquidator finds that there remain debts due, the attempt to collect which would be more onerous than beneficial to the estate, he shall report the same to the contributories or inspector, if any, and with their sanction he may sell the same by public auction after such advertisement thereof as they order, and pending such advertisement the liquidator shall keep a list of the debts to be sold, open to inspection at his office, and shall also give free access to all documents and vouchers explanatory of such debts, but all debts amounting to more than one hundred dollars shall be sold separately. R.S., c. 82, s. 17.

Compromises

18 The liquidators may, with the sanction of an extraordinary resolution of the company, compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets of the company or the winding up of the company, upon the receipt of such sums, payable at such times and generally upon such terms as are agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabilities, and to give a complete discharge in respect to all or any such calls, debts or liabilities. R.S., c. 82, s. 18.

Order fixing time limit

19 (1) The liquidator shall apply to the Court for an order fixing the time within which creditors of the company and other persons having claims thereon are to send in their claims, and within what time notice thereof shall be given.

Procedure on application

(2) Such notice may be by advertisement, and the procedure upon such application and the proof of such claims and the settlement of the list thereof shall as nearly as may be, be that prescribed in the rules of the Supreme Court, "Of Advertisements for Creditors and Claimants", and the duties of the liquidator shall as nearly as may be, be those in such rules prescribed for executors and administrators. R.S., c. 82, s. 19.

Distribution of assets

20 (1) When the liquidator has given such notice and complied with the directions of the Court respecting the settlement of such list of claims, he may, at the expiry of the time limited for the sending in of such claims and the proof thereof, distribute the assets of the company, or any part thereof, among the persons thereto entitled who have sent in their claims as required.

Liquidation without notice of claim

(2) The liquidator shall not be liable for the assets or any part thereof so distributed to any person of whose claim such liquidator had not notice at the time of distributing the assets or a part thereof, as the case may be, but nothing in this Act shall prejudice the right of any creditor or claimant to follow assets into the hands of any person who has received the same. R.S., c. 82, s. 20.

Compromises

21 The liquidators may, with the sanction of an extraordinary resolution of the company, make such compromise or other arrangment [arrangement] as the liquidators deem expedient with any creditors, or persons claiming to be creditors, or persons having or alleging to have any claim present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable. R.S., c. 82, s. 21.

Compensation for transfer

22 When any company is proposed to be or is in the course of being wound up, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first mentioned company, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators or an authority in respect to any particular arrangement, may receive in compensation, or in part compensation, for such transfer or sale, shares or other like interest in such other company for the purpose of distribution amongst the members of the company which is being wound up, or may in lieu of receiving cash, shares or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company. R.S., c. 82, s. 22.

Dissent

23 Any sale made or arrangement entered into by the liquidators in pursuance of Section 22 shall be binding on the members of the company which is being wound up, provided, that if any member of the company which is being wound up, who has not voted in favor of the special resolution passed by the company of which he is a member at either of the meetings held for passing the same expresses his dissent from any such special resolution, in writing, addressed to the liquidators or one of them, and left at the head office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissenting member may require the liquidators to do one of the following things as the liquidators prefer:

(a) either to abstain from carrying such resolution into effect; or

(b) to purchase the interest held by such dissenting member at a price to be determined in manner hereinafter mentioned, such purchase money to be paid before the company is dissolved, and to be raised by the liquidators in such manner as is determined by special resolution. R.S., c. 82, s. 23.

Resolution not invalid

24 No special resolution shall be deemed invalid for the purposes of Sections 22 and 23 by reason that it is passed antecedently to or concurrently with any resolution for winding up the company or for appointing liquidators. R.S., c. 82, s. 24.

Fixing of price

25 If the price to be paid for the interest of any such dissentient member cannot be determined by agreement, it may, upon the application of the liquidator, be determined by a referee appointed by the Court. R.S., c. 82, s. 25.

List of contributies

26 As soon as may be after the commencement of the winding up the liquidator shall prepare a list of contributories. R.S., c. 82, s. 26.

Liability to contribute

27 Every shareholder or member of the company or his representative shall be liable to contribute the amount unpaid on his share of the capital or on his liability to the company or to its members or creditors, as the case may be, under the Act, charter or instrument of incorporation of the company or under the law of this Province, and the amount which he is liable to contribute shall be deemed assets of the company and to be a debt due to the company. R.S., c. 82, s. 27.

Deemed member

28 When a shareholder has transferred his shares under circumstances which do not by law free him from liability in respect thereto, or where he is by law liable to the company or its contributories or any of them, to an amount beyond the amount unpaid on his shares, or when a member of a company, the liability of whose members is not limited by the Act, charter, or instrument of incorporation of such company, has resigned or ceased to be a member of the company at a time when the liabilities of the company are not satisfied, he shall be deemed a member of the company for the purposes of this Act, and shall be liable to contribute as aforesaid to the extent of his liabilities to the company or the contributories independently of this Act, and the amount which he is so liable to contribute shall be deemed assets and a debt as aforesaid. R.S., c. 82, s. 28.

Liability of former member

29 In the case of a company, the liability of whose members is not limited by the Act, charter or instrument of incorporation of the company, every member of the company at the time of the contracting of any debt or the incurring of any liability shall be liable to contribute to the payment of such debt or liability, notwithstanding he has since ceased to be a member of the company, and notwithstanding any statute relating to the limitation of actions, provided such liability can be enforced at law or in equity against the company. R.S., c. 82, s. 29.

Personal representative

30 It shall not be necessary when the personal representative of any deceased contributory is placed on the list to add the heirs or devisees of such contributory, nevertheless such heirs or devisees may be added at any time afterwards. R.S., c. 82, s. 30.

Distinction in list

31 The list of contributories shall distinguish between persons who are contributories in their own right and as being representatives of or liable for others. R.S., c. 82, s. 31.

List as evidence

32 Any list so settled shall be prima facie evidence of the liability of the persons named therein to be contributories. R.S., c. 82, s. 32.

List settled by Court

33 The list of contributories may be settled by the Court, in which case the liquidator shall make out and leave with the prothonotary of the Supreme Court a list of the contributories of the company, and such list shall be verified by the affidavit of the liquidator, and shall so far as is practicable state the respective addresses of and the number of shares or extent of interest to be attributed to each such contributory, and distinguish the several classes of contributories, and such list may from time to time by leave of a judge be varied or added to by the liquidator. R.S., c. 82, s. 33.

Appointment to settle

34 (1) Upon the list being so made up and filed by the liquidator he shall obtain an appointment from the Court, or a Judge, to settle the same, and shall give notice in writing of such appointment to every person included in the list, stating in what character and for what number of shares or interest such person is included in the list, and in case any variation or addition to such list is at any time made by the liquidator, a similar notice in writing shall be given to every person to whom such variation or addition applies.

Service of notice

(2) All such notices shall be served four clear days before the day appointed to settle such list, or such variation or addition. R.S., c. 82, s. 34.

Certificate of result

35 The result of the settlement of the list of contributories shall be stated in a certificate by the prothonotary of the Court, and certificates may be made from time to time for the purpose of stating the result of such settlement down to any particular time, or to any particular person, stating any variation of the list. R.S., c. 82, s. 35.

Liability of personal representatives

36 If any contributory dies, either before or after he has been placed on the list of contributories, his personal representatives, heirs and devisees shall be liable in due course of administration to contribute to the assets of the company, association or club in discharge of the liability of such deceased contributory, and such personal representatives, heirs and devisees shall be deemed to be contributories accordingly. R.S., c. 82, s. 36.

Calls

37 The liquidators may at any time and before they have ascertained the sufficiency of the assets of the company, call on all or any of the contributories, for the time being settled on the list of contributories, to pay to the extent of their liability all or any sums the liquidators deem necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and the liquidators may, in making a call, take into consideration the probability that some of the contributories upon whom the call is made may partly or wholly fail to pay their respective portions of the same. R.S., c. 82, s. 37.

Arrest

38 Where a persons name is on the list of contributories or is liable to be placed thereon, he shall be subject, in respect to his liability and on the application of the liquidator, to arrest and imprisonment like any other debtor, and he shall for that purpose be deemed a debtor to the company and a debtor to the liquidator, and his arrest may be ordered by the Court, and his being placed on the list of contributories under this Act shall be deemed a judgment, and the liquidator shall be deemed a judgment creditor, and the judgment may be enforced by an execution order in the same manner as an ordinary judgment in the Supreme Court. R.S., c. 82, s. 38.

Default

39 If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum to be paid by him, proceedings may be taken for administering the real and personal property of such deceased contributory, and for compelling payment thereout of the money due. R.S., c. 82, s. 39.

Employment of lawyer

40 (1) No liquidator shall employ any counsel or solicitor without the consent of the inspector, if any.

Purchase by liquidator

(2) No liquidator or inspector shall purchase directly or indirectly any part of the stock in trade, debts or assets of any description of the estate.

Deposit of money

(3) The liquidator shall deposit at interest in some chartered bank, to be indicated by the inspector or by the Court, all sums of money which he has in his hands belonging to the company, whenever such sums amount to one hundred dollars.

Separate account

(4) The deposit shall not be made in the name of the liquidator generally on pain of dismissal, but a separate deposit account shall be kept for the company of the moneys belonging to the company in the name of the liquidator, as such, and of the inspectors, if any, and such moneys shall be withdrawn only on the joint cheque of the liquidator and one of the inspectors, if any.

Production of pass book

(5) At every meeting of the contributories the liquidator shall produce a bank pass book showing the amount of deposits made for the company, the date at which such deposits were made, the amounts withdrawn and dates of such withdrawals, of which production mention shall be made in the minutes of such meeting, and the absence of such mention shall be prima facie evidence that such pass book was not produced at the meeting.

Court-ordered production

(6) The liquidator shall also produce the pass book whenever so ordered by the Court, at the request of the inspector or of a contributory, and on his refusal to do so he shall be treated as being in contempt of Court.

Payment of costs

(7) All costs, charges and expenses properly incurred in the winding up of a company under this Act, including the remuneration of the liquidators, shall be payable out of the assets of the company in priority to all other claims.

Jurisdiction of Court

(8) Every liquidator or inspector shall be subject to the summary jurisdiction of the Court in the same manner and to the same extent as the ordinary officers of the Court are subject to its jurisdiction, and the performance of his duties may be compelled, and all remedies sought or demanded for enforcing any claim for a debt, privilege, mortgage, lien or right of property upon, in, or to any effect or property in the hands, possession or custody of a liquidator, may be obtained by an order of the Court on summary application, and not by any suit, attachment, seizure or other proceeding of any kind whatever, and obedience by the liquidator to such order may be enforced by such Court under the penalty of imprisonment as for contempt of court or disobedience thereto, or he may be removed in the discretion of the Court. R.S., c. 82, s. 40.

Casual vacancy

41 (1) If any vacancy occurs in the office of liquidator appointed by the company, by death, resignation or otherwise, a general meeting of the contributories for the purpose of filling up such vacancy may be convened by the continuing liquidators, if any, or if none then by any contributory of the company.

General meetings

(2) The liquidators may from time to time during the continuance of the winding up summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution or extraordinary resolution, or for any other purpose they think fit.

Other meetings

(3) The liquidator shall also call meetings of the contributories whenever required in writing so to do by the inspector or five contributories, or by the Court, and he shall state succinctly in the notice calling any meeting the purpose thereof.

Place of meetings

(4) The contributories may from time to time at any meeting determine where subsequent meetings shall be held, and in the absence of such a resolution, all meetings of the contributories shall be held at the office of the liquidator or of the company, unless otherwise ordered by the Court.

Notice of meeting

(5) Notice of any meeting shall, for the purposes of this Act, be deemed to be duly given, and the meeting to be duly held, whenever such notice is given and the meeting held in manner prescribed by the Act, charter or instrument of incorporation, or by the regulations of the company, or by the Court, or notice of the meeting may be given by publication thereof for at least three weeks in the Royal Gazette, or by such other or additional notice as the Court, or the inspector or the company directs, and also, except when the Court otherwise directs, by addressing notices of the meeting to the contributories within the Province and to the representatives within the Province of contributories who reside out of the Province, and the said notices shall be posted at least ten days before the day on which the meeting is to take place, the postage being prepaid by the liquidator.

Voting

(6) No contributory shall vote at any meeting unless present personally, or represented by some person having a written authority to be filed with the liquidator to act on his behalf at the meeting or generally, and when a poll is taken reference shall be had to the number of votes to which each member is entitled by the Act, charter or instrument of incorporation, or the regulations of the company. R.S., c. 82, s. 41.

Order staying proceedings

42 At any time during a winding up, the Court may, upon the application of the liquidator or any shareholder or member or creditor or contributory and upon proof to its satisfaction that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Court thinks fit. R.S., c. 82, s. 42.

Application for assistance

43 The liquidator or any shareholder or member or creditor or contributory may apply to the Court to determine any question arising in the winding up or to exercise all or any of the powers of the Court under this Act, and the Court, if satisfied that the determination of such question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit or may make such order on the application as it thinks just. R.S., c. 82, s. 43.

Restraint by Court

44 The Court at any time after the presentation of a petition for winding up a company, and before making an order for winding up the company, may restrain further proceedings in any action or proceeding against the company, other than under any insolvency Act in force at the time, or any other authority over which this Legislature has no jurisdiction, in and upon such terms as the Court thinks fit. R.S., c. 82, s. 44.

No action without leave

45 (1) The Court may make an order that no action or other proceedings shall be proceeded with or commenced against the company, except with the leave of the Court and subject to such term as the Court imposes.

Section does not apply

(2) This Section shall not apply to proceedings under any Act of the Parliament of Canada under its jurisdiction in matters of bankruptcy and insolvency, or otherwise.

Advertising

(3) A copy of any such order shall forthwith be advertised as the Court directs. R.S., c. 82, s. 45.

Meetings directed by Court

46 The Court may direct meetings of the contributories to be summoned, held and conducted in such manner as the Court thinks fit, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the Court. R.S., c. 82, s. 46.

Order to contributory

47 The Court may require any contributory for the time being settled on the list of contributories, or any trustee, receiver, banker or agent or officer of the company, to pay, deliver, convey, surrender or transfer forthwith, or within such time as the Court directs, to or into the hands of the liquidator, any sum or balance, books, papers, estate or effects, which happen to be in his hands for the time being, and to which the company is prima facie entitled. R.S., c. 82, s. 47.

Power of Court

48 The Court may make an order on any contributory for the time being settled on the list of contributories, directing payment to be made, in manner in the order mentioned, of any moneys due from him or from the estate of the person whom he represents, to the company, exclusive of any moneys which he or the estate of the person whom he represents is liable to contribute by virtue of any call made or to be made by the Court in pursuance of this Act. R.S., c. 82, s. 48.

Contents of order

49 The Court may order any contributory, purchaser or other person from whom money is due to the company, to pay the same into any bank appointed for this purpose, in any general order made under this Act, or in default thereof into any bank named in the order, or into any branch of such bank, to the account of the official liquidator instead of to the official liquidator, and such order may be enforced in the same manner as if it had directed payment to the official liquidator. R.S., c. 82, s. 49.

Effect of order

50 Any order made by the Court in pursuance of this Act upon any contributory, shall, subject to the provisions herein contained for appealing against such order, be conclusive evidence that the moneys, if any, thereby appearing to be due, or ordered to be paid, are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons and in all proceedings whatsoever, with the exception of proceedings taken against the real property of any deceased contributory, in which case such order shall only be prima facie evidence for the purpose of charging such real property, unless his heirs or devisees were on the list of contributories at the time the order was made. R.S., c. 82, s. 50.

Order for inspection

51 The Court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the Court thinks just, and any books and papers in the possession of the company may be inspected in conformity with the order of the Court, but not further or otherwise. R.S., c. 82, s. 51.

Summons by Court

52 The Court may, at any time after the commencement of the winding up of the company, summon to appear before the Court or liquidator any officer of the company, or any other person known or suspected to have in his possession any of the property or effects of the company, or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the trade, dealings, property or effects of the company, and in case of refusal by such officer or other person to appear, or answer the questions submitted, he may be committed and punished by the judge as for a contempt. R.S., c. 82, s. 52.

Order to produce

53 The Court may require any such officer or person to produce any books, papers, deeds, writings or other documents in his custody or power relating to the company. R.S., c. 82, s. 53.

Failure to comply

54 If any person so summoned, after being tendered the fees to which a witness is entitled in the Supreme Court, refuses to come before the Court or liquidator at the time appointed, having no lawful impediment, the Court may cause such person to be apprehended and brought before the Court or liquidator for examination. R.S., c. 82, s. 54.

Examination on oath

55 The Court or liquidator may examine upon oath any person appearing or brought before them in the manner aforesaid, concerning the affairs, dealings, property or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same. R.S., c. 82, s. 55.

Subpoena

56 In any proceedings under this Act, the Court may order a subpoena to issue, commanding the attendance as a witness of any person within the limits of the Province. R.S., c. 82, s. 56.

Lien not prejudiced

57 When any person claims any lien on papers, deeds or writings, or documents produced by him, such production shall be without prejudice to the lien, and the Court shall have jurisdiction in the winding up to determine all questions relating to such lien. R.S., c. 82, s. 57.

Powers of Court

58 Where, in the course of winding up any company under this Act, it appears that any past or present director, manager, liquidator or any officer of such company, has misapplied or retained in his own hands, or become liable or accountable for, any moneys of the company, or been guilty of any malfeasance or breach of trust in relation to the company, the Court may, on the application of any liquidator, or of any contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine into the conduct of such director, manager or other officer, and compel him or his executors or administrators to repay any moneys so misapplied or retained, or for which he or his estate has become liable or accountable, together with interest after such rate as the Court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect to such misapplication, retainer, malfeasance or breach of trust, as the Court thinks just. R.S., c. 82, s. 58.

Appeal

59 Any person who is dissatisfied with any order or decision of a judge in any proceeding under this Act may appeal therefrom in the manner prescribed by the practice and rules of the Supreme Court in relation to appeals from the decision of a single judge. R.S., c. 82, s. 59.

Existing powers unaffected

60 Any powers by this Act conferred on the Court shall be deemed to be in addition to and not in restriction of any other powers subsisting, either at law or in equity of instituting proceedings against any contributory, or against any debtor of the company for the recovery of any call or other sums due from such contributory or debtor or his estate, and such proceedings may be instituted accordingly. R.S., c. 82, s. 60.

Authorization by Court

61 If at any time any contributory who desires to cause any proceeding to be taken, which in his opinion would be for the benefit of the company, and the liquidator, under the authority of the contributories or of the inspectors, refuses or neglects to take such proceeding after being duly required so to do, such contributory may obtain an order of the Court authorizing him to take such proceeding in the name of the liquidator or company, but at his own expense and risk, upon such terms and conditions as to indemnity to the liquidator as the Court prescribes, and thereupon any benefit derived from such proceedings shall belong exclusively to the contributory instituting the same for his benefit and that of any other contributory who joins him in causing the institution of such proceeding, but if before such order is granted the liquidator signifies to the Court his readiness to institute such proceeding for the benefit of the company, an order shall be made prescribing the time within which he shall do so, and in that case the advantage derived from such proceeding shall appertain to the company. R.S., c. 82, s. 61.

Court application by contributories

62 (1) Any one or more contributories whose claims in the aggregate exceed five hundred dollars, who are dissatisfied with the resolutions adopted or orders made by the contributories or the inspectors, or with any action of the liquidator, for the disposal of the property of the company, or any part thereof, or for postponing the disposal of the same, or with reference to any matter connected with the management or winding up of the estate, may within four clear days after the meeting of the contributories, in case the subject of dissatisfaction is a resolution or order of the contributories, or within four clear days after becoming aware of or having notice of the resolution of the inspectors, or action of the liquidator, where such resolution or action is the subject of dissatisfaction, give to the liquidator notice that he or they will apply to the Court on the day and at the hour fixed by such notice, and not being later than four clear days after such notice has been given, or as soon thereafter as the parties may be heard before such Court, to rescind such resolutions or orders.

Powers of Court

(2) The Court, after hearing the inspectors, the liquidators and contributories present at the time and place so fixed, may approve, rescind or modify such resolutions or orders.

Costs

(3) In case of the application being refused, the party applying shall pay all costs occasioned thereby, and in other cases the costs shall be in the discretion of the Court. R.S., c. 82, s. 62.

Taxation of costs

63 (1) The costs of proceedings under this Act shall be taxed and allowed according to the law relating to costs and fees.

Petition

(2) An application to the Court for the winding up of a company under this Act shall be by petition, and the petition may be presented by the company, or by any contributory or contributories, or shareholder or shareholders, or member or members of the company.

Powers on hearing

(3) Upon hearing the petition, the Court may dismiss the same with or without costs, or may adjourn the hearing conditionally or unconditionally, and may make an interim order or any other order that it deems just.

Statements to documents

(4) In every petition, application, motion or other pleading or proceeding under this Act the parties may state the facts upon which they rely in plain and concise language, and to the interpretation thereof the rules of construction applicable to such language in the ordinary transactions of life shall apply.

Prima facie evidence

(5) All books, accounts and documents of the company and of the liquidator shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

Notice

(6) Except when otherwise provided for, a clear judicial days notice of any petition, motion, order or rule shall be sufficient, and service of such notice shall be made in such manner as a similar service in a civil action. R.S., c. 82, s. 63.

Rules of procedure apply

64 The rules of procedure for the time being as to amendments of pleadings and proceedings in the Supreme Court shall, as far as practicable, apply to all pleadings and proceedings under this Act, and the Court or liquidator before whom such proceedings are pending shall have full power and authority to apply the appropriate rules as to amendments to such proceedings, and no pleading or proceeding shall be void by reason of any irregularity or default which can or may be amended or disregarded under the rules and practice of the Court. R.S., c. 82, s. 64.

Enforcement of orders

65 All orders made by the Court may be enforced in the same manner and by the same officers as in the case of orders of the Court made in any action pending therein. R.S., c. 82, s. 65.

Powers of judges concerning procedure

66 A majority of the judges of the Supreme Court from time to time shall make, frame, settle and approve of the forms, rules and regulations to be followed and observed in proceedings under this Act, and shall have power to amend, change and vary the same, and such forms, rules and regulations, being first published in the Royal Gazette, shall have the same force and effect as if they had been made and included in this Act. R.S., c. 82, s. 66.

Accounting by liquidator

67 (1) As soon as the affairs of the company are fully wound up, the liquidators shall make up an account, showing the manner in which such winding up has been conducted, and the property of the company disposed of, and within sixty days after the affairs of the company are fully wound up, they shall call a general meeting of the members of the company, to be held within sixty days for the purpose of having the account laid before them, and hearing any explanation that is given by the liquidators, such meeting shall be called by advertisement, specifying the time, place and object thereof, and the advertisement shall be published one month at least previous thereto.

Return by liquidator

(2) The liquidator shall within thirty days after the holding of such meeting make a return to the Attorney General of such meeting having been held, and of the date at which the same was held, which return shall be filed in the office of the Attorney General, and on the expiration of three months from the date of filing such return the company shall be deemed to be dissolved.

Dissolution by Court

(3) Or, whenever the affairs of the company have been completely wound up, the Court may make an order that the company shall be dissolved from the date of such order, and the company shall be dissolved accordingly, the order shall be reported by the liquidator to the Attorney General within thirty days after the date thereof. R.S., c. 82, s. 67.

Penalty

68 (1) If the liquidator makes default,

(a) in calling a general meeting of the members of the company as provided by Section 67;

(b) in transmitting to the Attorney General the return as provided by Section 67; or

(c) in reporting the order, if any, declaring the company dissolved, as provided by Section 67,

he shall be liable to a penalty of ten dollars for every day during which he is in such default.

Summary Proceedings Act

(2) The penalties prescribed by subsection (1) shall be recovered or enforced under the Summary Proceedings Act. R.S., c. 82, s. 68.

Treatment of dividends

69 All dividends deposited in a bank and remaining unclaimed at the time of the dissolution of the company shall be left for three years in the bank where they are deposited and if still unclaimed shall then be paid over by the bank with interest accrued thereon to the Minister of Finance, and if afterwards duly claimed shall be paid over to the persons entitled thereto. R.S., c. 82, s. 69.

Deposit in bank

70 (1) Every liquidator shall, within thirty days after the date of the dissolution of the company, deposit in the bank appointed or named, as hereinbefore provided, for any other money belonging to the estate then in his hands not required for any other purpose authorized by this Act, with a sworn statement and account of such money, and that the same is all he has in his hands.

Penalty

(2) Every liquidator neglecting to make such deposit shall be liable to a penalty not exceeding ten dollars for each day during which such neglect continues, and he shall be a debtor to Her Majesty in right of the Province for such money, and may be compelled as such to account for and pay over the same.

Payment to Minister

(3) The money so deposited shall be left for three years in the bank, and shall then be paid over with interest to the Minister of Finance, and if afterwards claimed shall be paid over to the person entitled thereto. R.S., c. 82, s. 70.

Disposal of records

71 (1) When any company has been wound up under this Act and is about to be dissolved, the books, accounts and documents of the company and of the liquidators may be disposed of in such a way as the company by an extraordinary resolution directs.

Effect of disposal

(2) After the lapse of five years from the date of such dissolution, no responsibility shall rest on the company or the liquidators, or any one to whom the custody of such books, accounts and documents has been committed, by reason that the same or any of them cannot be made forthcoming to any party or parties claiming to be interested therein. R.S., c. 82, s. 71.