Re Calgary and Edmonton Land Company Ltd

JurisdictionEngland & Wales
Judgment Date1975
CourtChancery Division
[CHANCERY DIVISION] In re CALGARY AND EDMONTON LAND CO. LTD. (IN LIQUIDATION) [No. 00977 of 1970] 1971 Nov. 25, 26, 27, 28, 29; Dec. 3; 10 Megarry J.

Company - Winding up - Voluntary liquidation - Stay - Contributory's application - No arrangement or scheme to protect members' interests - Court's discretion - Conditions for grant of stay - Companies Act 1948 (11 & 12 Geo. 6, c. 38), ss. 256 (1), 302, 307 (1) (2)F1

A company had been in a creditors' voluntary winding up since May 21, 1970. The applicant, as a shareholder and director of the company, took out a summons for a stay of the winding up and other relief. He presented no proposals for discharging the claims of the remaining creditors or the liquidator's expenses, nor did he present any scheme to give effect to the rights of shareholders who might oppose the stay. The registrar dismissed the summons on the ground that it ought to have been preceded by a scheme under section 206 of the Companies Act 1948 giving members an opportunity of putting forward their views.

On the applicant's motion that the registrar's order be discharged: —

Held, (1) that section 307 (1) and (2) of the Act of 1948 extended section 256 (1) to a voluntary winding up, that the jurisdiction of the court under section 256 was discretionary, and that it was for those who sought a stay to make out a sufficient case (post, p. 358G–H).

(2) That although, on a winding up, section 302 of the Act entitled each member to an aliquot share of the company's surplus assets, the members' rights could not be quantified until the liquidation was complete; and that, normally, no stay should be granted unless each member either consented to it, or was bound not to object to it (whether by a scheme under section 206 or otherwise), or there was secured to him the right to receive all that he would have received had the winding up proceeded to its conclusion; and that as this was not the case, the motion ought to be dismissed (post, pp. 359C, 360E–F, 363C–F).

In re Trix Ltd. [1970] 1 W.L.R. 1421 applied.

The following cases are referred to in the judgment:

Albert Life Assurance Arbitration, The (1871) 15 S.J. 922.

Calgary and Edmonton Land Co. Ltd. v. Dobinson [1974] Ch. 102; [1972] 2 W.L.R. 143; [1974] 1 All E.R. 484.

Central Sugar Factories of Brazil, In re [1894] 1 Ch. 369.

Commissioner of Stamp Duties (Queensland) v. Livingston [1965] A.C. 694; [1964] 3 W.L.R. 963; [1964] 3 All E.R. 692, P.C.

Edward Wood & Co. Ltd., In re [No. 002199 of 1973] (unreported), April 8, 1974.

General Rolling Stock Co., In re (1872) 7 Ch.App. 646.

Inland Revenue Commissioners v. Olive Mill Ltd. (In Liquidation) [1963] 1 W.L.R. 712; [1963] 2 All E.R. 130.

N. F. U. Development Trust Ltd., In re [1972] 1 W.L.R. 1548; [1973] 1 All E.R. 135.

Oriental Inland Steam Co., In re, Ex parte Scinde Railway Co. (1874) 9 Ch.App. 557.

South Barrule Slate Quarry Co., In re (1869) L.R. 8 Eq. 688.

Stephen Walters & Sons Ltd., ln re [1926] W.N. 236.

Telescriptor Syndicate Ltd., In re [1903] 2 Ch. 174.

Trix Ltd., In re [1970] 1 W.L.R. 1421; [1970] 3 All E.R. 397.

Wigan Coal & Iron Co. Ltd. v. Inland Revenue Commissioners [1945] 1 All E.R. 392.

Yagerphone Ltd., In re [1935] Ch. 392.

The following additional cases were cited in argument:

Flatau, In re [1893] 2 Q.B. 219, C.A.

Hester, In re, Ex parte Hester (1889) 22 Q.B.D. 632, C.A.

London Chartered Bank of Australia, In re [1893] 3 Ch. 540.

Punt v. Symons & Co. Ltd. [1903] 2 Ch. 506.


Since May 21, 1970, the company, Calgary and Edmonton Land Co. Ltd., had been in a creditors' voluntary winding up. On October 31, 1974, the applicant, Isaac David Hillman, a shareholder and director, issued a summons seeking, inter alia, an order for a stay of the winding up on such terms or conditions as the court deemed fit. Mr. Registrar Berkeley dismissed the summons, mainly on the grounds that no scheme under section 206 of the Companies Act 1948 had been proposed. On November 14, 1974, the applicant gave notice of motion for an order that the registrar's order be discharged.

The facts are stated in the judgment.

The applicant in person.

Mary Arden for the liquidator.

Cur. adv. vult.

December 10. MEGARRY J. read the following judgment. This motion is a further stage in the tangled and often stormy career of the Calgary and Edmonton Land Co. Ltd.: I shall call it “the company.” Since May 21, 1970, the company has been in a creditors' voluntary winding up. The company is a property development company with assets valued at several millions of pounds, though the present economic climate, together with uncertainties as to planning permissions and prospects of development, have made the valuation and realisation of the assets matters of some difficulty. However, there seems to be at least a high degree of probability that when all the assets are realised there will be enough to pay all the remaining creditors, discharge the expenses of liquidation (including paying the liquidator's remuneration) and leave a substantial balance for the shareholders. What is now before me is a motion by Mr. I. D. Hillman to discharge an order made by Mr. Registrar Berkeley on November 5 last. There are nearly 14 million issued ordinary shares in the company, and Mr. Hillman owns nearly 10,000 of them and his wife a little under 150,000. The major shareholder is another company called Bank & Commercial Holdings Ltd.: I shall refer to this as “B & C.” B & C holds over 13 million of the shares in the company. and this is over 93 per cent. of the total. B & C acquired a large part of these shares from Mr. and Mrs. Hillman under what is popularly called a “take-over bid”; and since the matter was before Mr. Registrar Berkeley earlier in the year B & C have acquired a relatively small number of additional shares in the company, though, as the registrar pointed out, a fall in the value of B & C's shares has now made acceptance of their offer far less advantageous than it once was.

On January 16, 1974, B & C issued a summons seeking a stay of the winding up, together with certain other relief relating to the remuneration of the liquidator. That summons was argued before the registrar by leading counsel on each side, with counsel for the liquidator neither supporting nor opposing the stay but drawing the registrar's attention to a number of relevant factors. On July 23 last the registrar delivered a reserved judgment of some length, dismissing the application for a stay and directing that the application for other relief should be stood over generally. B & C then gave notice of motion seeking to discharge the registrar's order, and this was called on before me on October 14. Counsel for B & C at once said that B 8r C were abandoning the motion, and I accordingly dismissed it. Mr. Hillman, who appeared in person, attempted to be heard in support of the motion, but as B & C had abandoned it and he was not a party to it, I refused to hear him. For some while during the hearing of the present motion this change of front by B & C remained a little mysterious, but on Day 4 the mystery was dispelled when, with the assent of all concerned, Mr. Stubbs made a brief appearance on behalf of B & C and made a short and helpful statement. The attitude of B & C, he said, was still in favour of a stay; but in the prevailing economic climate B & C was no longer in a position to provide sufficient liquid funds from outside the company's own resources to cover the liquidator's remuneration and expenses. It was for this reason that B & C had not proceeded further with its application for a stay.

After the B & C application for a stay had been abandoned, Mr. Hillman took out his own summons, seeking a stay of the winding up of the company, and seeking further orders in relation to the remuneration of the liquidator. That summons came on for hearing before the registrar on November 5, when Mr. Hillman appeared in person and the liquidator by counsel. The registrar disposed of the application very shortly, dismissing the application for a stay merely by reference to his decision on B & C's application for a stay. Mr. Hillman now moves before me in person under his notice of motion, which simply seeks that the registrar's order in his case “may be discharged,” and that each party pay their own costs, or that they be paid out of the assets of the company; and there is the familiar prayer for further and other relief. Miss Arden appeared for the liquidator, neither supporting nor opposing Mr. Hillman's motion, but...

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120 cases
2 books & journal articles
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2014, December 2014
    • 1 December 2014
    ...question arising in a winding up as it thinks just. 17.36 The principles set out by Megarry J in In re Calgary and Edmonton Land Co Ltd[1975] 1 WLR 355 govern the ambit of this discretion. First, the application for a stay must make out a case that carries conviction: Interocean Holdings at......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2020, December 2020
    • 1 December 2020
    ...19 [2019] 5 SLR 709. 20 Cap 322, R 5, 2014 Rev Ed. 21 [2016] 3 SLR 1156 at [19(a)]–[19(c)]. 22 In re Calgary and Edmonton Land Co Ltd [1975] 1 WLR 355 at 359. 23 [2020] 5 SLR 1002. 24 Bill 58 of 1966. 25 Cap 174, 1955 Rev Ed. 26 [2020] 2 SLR 1332. 27 Insolvency, Restructuring and Dissolutio......

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