Hill v Black
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1914 |
| Docket Number | No. 105. |
| Date | 09 July 1914 |
| Court | Court of Session |
Lord Dundas, Lord Mackenzie, Lord Cullen.
CompanyWinding-upAction against company without leave of CourtCompetencyWaiver of objection by companyDuty of CourtCompanies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), sec. 142.
The Companies (Consolidation) Act, 1908, enacts, sec. 142, When a winding-up order has been made, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose.
A pursuer, without having obtained the leave of the Court, brought an action against a company in liquidation, and also against the liquidator and certain secured creditors. Decree in absence was granted against the company and the liquidator. The secured creditors, who were the only compearing defenders, did not plead on record any objection to the competency of the action.
In an appeal at the instance of the secured creditors, held that, as the company and the liquidator had waived any objection to the competency, it was not pars judicis for the Court to enforce the provisions of the section.
On 11th March 1913 Alexander Ramsay Hill, residing at 5 South field, St Andrews, brought, in the Sheriff Court at Dundee, an action of declarator that he was proprietor of certain debentures of The King's Theatre and Hippodrome, Dundee, Limited, then in liquidation. He called as defenders (1) the Company, (2) the liquidator, (3) the trustees for the first mortgage debenture-holders, (4) the trustees for the second mortgage debenture-holders, (5) certain postponed bondholders.
No application was made by the pursuer to the Court under section 142* of the Companies (Consolidation) Act, 1908, for leave to bring the action.
The Company and the liquidator did not lodge defences, and on 5th May 1913 the Sheriff-substitute (Neish) granted decree in absence against them.
The trustees for the second debenture-holders alone defended the action, and they stated no plea on record that the action was incompetent on the ground that the requirements of section 142 had not been complied with.
The Sheriff-substitute having heard parties on the merits, continued the debate in order that the effect of section 142 might be discussed.
On 26th June 1913 he granted decree of declarator as craved, and stated in his note that in his opinion it was not pars judicis for him to enforce the provisions of the section, as the Company and the liquidator had...
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