Statutory contribution liability cannot be enforced against secondary contributories until primary members are exhausted; pre-order interest disallowed.

Section 156 creates a new statutory liability of contribution and, on the statutory scheme, contributories listed as secondary (list B) may not be called to contribute until contributories on list A have been exhausted; the High Court set aside a payment order against a list B appellant because there was no evidence that list A had been fully called or exhausted. The Court further held that section 156 does not permit interest prior to a payment order, although a court may award interest from the date of any payment order until realization.

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Issues: (i) Whether a contributory appearing on list B can be called upon to contribute under the Companies Act before the contributories on list A have been exhausted (section 156(1)(iii)); (ii) Whether interest prior to a payment order is payable on the contribution claimed under section 156.

Issue (i): Whether contributories on list B can be ordered to contribute before those on list A have been called upon to the full extent.

Analysis: The Court examined the pleading and trial record and the statutory scheme establishing contributory liability. It noted that section 156 creates a new statutory liability of contribution and that the statutory sequence requires that existing members (list A) be called upon before other contributories (list B). The Court found no evidence that list A had been exhausted or that existing members had been called to contribute to the full extent; no opportunity had been given to the appellant to adduce evidence on that point. The District Judge's alleged finding that liabilities could not be met from existing members was unsupported by a proper calling of list A.

Conclusion: The appellant on list B cannot be called upon to contribute until it appears that the contributories on list A have been exhausted. The payment order against the appellant is set aside and the claim is to be kept pending until it appears that existing members are unable to satisfy their contributions.

Issue (ii): Whether interest prior to the payment order is allowable on the statutory contribution claimed under section 156.

Analysis: The Court considered the nature of the liability created by section 156 as a new statutory obligation and reviewed whether the Articles or pre-existing call terms could support a claim for interest. It held that section 156 makes no provision for interest prior to the making of a payment order, although a Court making a payment order may direct future interest on the amount fixed from the date of the order until realization.

Conclusion: Interest prior to the payment order is not allowable on the contribution claimed under section 156; the Liquidator's claim for pre-order interest is dismissed, while the court retains power to direct interest from the date of any payment order.

Final Conclusion: The appeal of the contributory succeeds and the payment order against them is set aside; the Liquidator's appeal for interest is dismissed and the claim will remain pending until it appears that existing members cannot satisfy their contributions.

Ratio Decidendi: Section 156 creates a new statutory liability of contribution which cannot be enforced against contributories on list B until contributories on list A have been exhausted, and pre-order interest is not payable on such statutory contributions.

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