Re Bank of Hindustan, China and Japan. ex parte Levick and Others
| Jurisdiction | England & Wales |
| Year | 1865 |
| Date | 1865 |
| Court | Equity |
Actions by Voluntary Liquidators - Execution by Defendant for Costs -
Where an action brought by liquidators appointed in a voluntary winding-up under supervision fails, execution by the Defendant for costs will not be restrained.
The 163rd section of the Companies Act, 1862, is qualified by the 87th.
THE Bank of Hindustan, China, and Japan, Limited, being in voluntary liquidation, an order was made on the 21st of December, 1866, for continuing the winding-up under supervision. In February, 1867, actions were brought by the liquidators against Messrs. Levick and five other persons, which failed. On the 14th of August, 1867, judgments were entered up against the bank for the costs of the defence in the actions; and on the following day executions were issued. On the 16th of August, 1867, an injunction was granted by Vice-Chancellor Malins, restraining the Sheriffs of London and the Defendants in the actions from selling under the execution, and this was a motion that the injunction might be dissolved.
Mr. Dickinson, Q.C., and Mr. Eddis, for the motion:—
The only question is, whether these persons had a right to issue executions? The 163rd section of the Companies Act, 1862, which enacts, that where any company is being wound up by this Court, or subject to the supervision of the Court, “any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents,” does not apply to this case. This being a voluntary winding-up under supervision, the liquidators brought the actions, as they might do, without the leave of the Court (sect. 133, clause 7). The whole scope of the Act is to prevent creditors of the company from enforcing their demands at law; but it cannot be said that liquidators who, if they bring actions, and are successful, would be entitled to costs, shall not pay costs if they bring actions and are unsuccessful. If a summons had been taken out, and it had failed, the person against whom it was taken out would be entitled to costs. Supposing that the 163rd section does apply to this case, still the Court has the power of deciding whether the executions shall be proceeded with or not. The discretion of the Court has not been ousted by the clause. As there has been no irregularity in...
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Milne, NO v Cassim and Another
...me to any South African case on the point, but I was referred to several English cases, namely: In re Bank of Hindustan, China and Japan (1867) 5 Eq. 69; In re Dominion of Canada Plumbage Co., 27 Ch. D. 33; In re Trent and Humber Shipbuilding Co., 1869 Eq. 94; In re Pacific Coast 1962 (1) S......
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