Re Vuma Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN |
| Judgment Date | 26 October 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1026-2 |
| Court | Court of Appeal |
| Date | 26 October 1960 |
[1960] EWCA Civ J1026-2
The Master of the Rolls
(Lord Evershed) and
Lord Justice Harman
In The Supreme Court of Judicature
Court of Appeal
MR J. R. BICKFORD SMITH (instructed by Messrs Cochrane & Cripwell) appeared as Counsel for to Appellants, the Petitioning Creditors.
(Instructed by Messrs Meken. Co., Messrs Coward Chance Co. and Mr. Clifford Symons) appeared as Counsel for the Respondents, the Company and Opposing Creditors.
: We need not trouble you. Mr. Bickford Smith.
This petition was presented by a judgment creditor, A.E.I Hotpoint Ltd., for the winding up of Vuma Limited. When the matter came before Mr. Justice Buckley it emerged that the only other two creditors who are known to exist but who had hitherto supported the petitioning creditor had changed their minds and opposed the making of the order. It is right to say that the amounts owing to the two opposing creditors, which is something to which by Section 346 the Court should have regard, wore considerably more than the amount owing to the petitioning creditor It is said by Mr. Instone for the opposing creditors that if the majority of the creditors oppose the making of an order, that Is the end of the matter unless some special circumstances are shown; and as be indicated the special circumstances which ho suggested should be shown were that the opposing creditors wore acting from some irrelevant or improper motive or that there was some fraud established In the conduct of the Company's business. I cannot accept the statement which Mr. Instone makes that his general proposition is the view of everybody in the Companies Court. The language of the statute, so far as relevant in Section 346,is that "the Court may, as to all matters relating to the winding-up of a company, have regard to the wishes of the creditors as proved to it by any sufficient evidence" etc. In the Twentieth of Palmer's Company Law it is stated thus at page 700: "A petitioning creditor who cannot get paid a sum presently payable has against the company a right ex debito justitise to a winding-up order; even though the assets are overcharged by debentures. This right to a winding-up order Is, however, qualified by another rule, viz., that the Court will regard the wishes of the majority in value of the creditors, and If, for some good reason, they object to a winding-up order, the Court in its discretion may refuse the order". It is manifest, if that is a correct statement, that it is very far removed from the proposition submitted by Mr. Instone. In the last edition of Buckley on the Companies Act the matter Is put more as Mr. Instone has stated it "This right of the creditor, however, is not an individual right but is a representative right as one of a class. If a majority of the class, namely, the creditors of like degree, take a different view, the Court, in the absence at all events of special circumstances making an order 'just and equitable, gives effect to such right as the majority desire to exercise". The cases cited are the same as those referred to in and of the cases cited we have been particularly referred to the one in this Court recently of Re Karsberg Ltd. reported in 1956, 1 Weekly Law Reports at page 57, and to that I will return in a moment.
But I first look at the facts of...
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Bank of Credit and Commerce International Sa and Another
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