Engineering Industry Training Board v Samuel Talbot (Engineers) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL,LORD JUSTICE SALMON |
| Judgment Date | 04 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1204-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 1968 |
[1968] EWCA Civ J1204-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of Claimant Edward Taylor, liquidator, from order made by Mr. District Registrar Curry on 28th October 1968.
The Master of the Rolls (Lord Denning)
Lord Justice Russell and
Lord Justice Salmon
Mr. P. MILLETT (instructed by Messrs. T.D. Jones & Co., Agents for Messrs. Linsley & Mortimer, Newcastle-upon-Tyne) appeared on behalf of the Claimant, Appellant.
Mr. J.R. SYKES appeared for the Judgment creditor.
Mr. M.A.F. LYNDON-STANFORD appeared on behalf of the Sheriff.
The Engineering Industry Training Board obtained a judgment for £100 against Samuel Talbot (Engineering) Ltd. The creditors levied execution on the goods of the judgment debtor. The sheriff has sold the goods. The judgment debtor has gone into liquidation. The question is whether the proceeds of sale are to be paid to the execution creditor or to the liquidator. The answer depends on whether a sufficient notice was served on the sheriff to satisfy section 326(2) of the Companies Act, 1948: for, if a sufficient notice was served, the sheriff has to pay the proceeds to the liquidator and not to the execution creditor.
Section 326(2) says that "where under an execution the goods of a company are sold …. the sheriff shall … retain the balance for fourteen days, and if within that time notice is served on him … of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company, and … a resolution is passed for the winding up of the company, the sheriff shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor".
The point in the present case is whether notice was served on the sheriff "of a sating having been called at which there is to be proposed a resolution for the winding up of the company". The facts are these:
In May 1968 Samuel Talbot (Engineers) Ltd. were in financial difficulties. The directors decided to go into liquidation by a creditors voluntary winding-up. Accordingly they served the two notices required by section 293 of the Companies Act 1948, One was a notice to the members calling a meeting for the purpose. The other was a notice to the creditors calling a creditors meeting. Both meetings were called for the same day, the 17th May, 1968, with half-an-hour between them. The notice to the members was dated the 1st May of 1968. It gave notice that an Extraordinary General Meeting of the company would be held on the 17th May of 1968 at 2.45 in the afternoon, for the purpose of considering an extraordinary resolution, that "the companycannot, by reason of its liabilities, continue its business", and to appoint Mr. Brown as liquidator. The notice to the creditors was also dated the 1st May of 1968, It gave notice "pursuant to Section 293 of the Companies Act 1948" that a meeting of the creditors would be held on the 17th May, 1968, at 3.15 in the afternoon for the purpose of hearing a full statement of the position of the company's affairs, "and for the purpose, if thought fit, of nominating a liquidator and of appointing a committee of inspection". Those two notices were sent out simultaneously as required by section 293 for meetings on the 17th May of 1968.
A few days before the date of the meetings, namely, on the 13th May, 1968, the company sent to the sheriff's officer a letter on which the whole issue in this case depends. It was in these terms:
"Dear Sir, Samuel Talbot (Engineers) Ltd, We enclose notices of a meeting of creditors which have been issued by the above-named Companies for a meeting to be held on Friday, 17th May next."
In that letter the company enclosed only the notice of the meeting of creditors. It did not enclose the notice of the meeting of members. Nor did it in terms mention the meeting of members. The point in the case is this Was that letter a notice "of a meeting having been called at which there is to be proposed a resolution for the voluntary winding-up of the company" such as to satisfy section 326(2) of the Companies Act 1948? If it was, then the sheriff was bound to hold the proceeds of sale of the goods and to pay them over to the liquidator. If it was not, then the sheriff was bound to pay the proceeds to the execution creditor.
On the 14th May the goods were sold by the sheriff and the money held by him. On the 17th May the two meetings were held. The members passed their resolution for winding-up. The creditors nominated the liquidator. So section 326 was satisfied on all points subject to the letter of the 13th May 1948 with its enclosure being a sufficient notice.
If the section were to be construed strictly, according to its literal meaning, then it would not be satisfied in this case. The section requires notice to be given of the members meeting, whereas here notice was only given of the creditors meeting. But we no longer construe Acts of Parliament according to their literal meaning. We construe them according to their object and intent. Here the object and intent of the legislature was to see that the sheriff's officer was notified that a creditors winding-up was imminent and that the statutory notices had been given to that end. The notice in this case was quite sufficient to achieve that object. It started off by saying that notice is hereby given "pursuant to section 293 of the Companies Act 1948". So the recipient is referred to section 293, which says plainly that two notices are to be sent out simultaneously, one to the creditors and the other to the members of the company. He would know, therefore, that, as the creditors notice had been sent out, the members notice would have been sent out too. At any...
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...Co. Ltd. (supra, at p. 193) and, in modern tines, in Engineering Industry Training Board v. Samuel Talbot (Engineers) Ltd, and Anor. [1969] 2 Q.B. 270, there is the characteristic dictum of Lord Denning (p. 274, that — “We no loner construe Acts of Parliament according to their object and ......