Re Wilson (E. K.) & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE STAMP,LORD JUSTICE MEGAW |
| Judgment Date | 21 February 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0221-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1972 |
[1972] EWCA Civ J0221-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Chancery Division
(Companies Court)
Lord Justice Sachs
Lord Justice Megaw and
Lord Justice Stamp
MR. J.M. CHADWICK (instructed by Messrs. A.L. Philips & Co., Solicitors, London) appeared on "behalf of the Petitioner (Respondent).
MR. PATRICK GROUND (instructed by Messrs. Clayton Leach Sims & Co., Solicitors, London) appeared on behalf of the Company.
I will ask Lord Justice Stamp to da liver the first judgment.
This is an application for security for the costs of an appeal by the Company, E.K. Wilson and Sons Limited, from a windlng-up order which has been stayed pending the appeal.
The windirg-up order was made upon the Petition of the Respondent to the appeal, the present applicant for security, who is a contributory of the Company. The Company has substantial assets and it is not suggested that if the appeal were dismissed with costs the Company would not be able to satisfy the costs.
As I have indicated, the Petition on which the winding-up order was made was a contributory Petition, about which I think it is unnecessary to say more than this, that it was based upon allegations against those conducting the affairs of the Company which the court found required investigation.
Because the Company is solvent, it follows that if it loses the appeal and is ordered to pay the Respondent's costs and it does so out of assets, that payment will operate to reduce the assets distributable among the contributories, of whom the Respondent is one, so that the successful Respondent will be bearing a part of the costs which have been ordered to be paid to him proportionate to his share of the assets as a contributory. In my judgment nothing could be more absurd.
In Re. Consolidated South Rand Mines Deep, Limited, (1909) Weekly Notes, page 66, where the Court of Appeal was confronted with a not dissimilar situation, the Master of the Rolls expressed the view that "though the company has a right to appeal, it ought only to be allowed to do so upon the terms offinding, not from the company's fund but from some outside source - the directors or shareholders who were at the back of the appeal -...
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