1960 (10) TMI 20

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.... 1960, execution was issued but the effects were claimed by one F.C. Hopkinson (who bore the same name as one of the two signatories to the memorandum of association). In June, A. E. I. Hotpoint Ltd. presented a petition to have the company wound up by the court but at the hearing two creditors, R.S. Stokvis & Zonen N.V. of Rotterdam Holland, and Robeck Distributors (London) who had both given notice to the petitioner that they would support the petition, opposed it. The amounts of the debts of these two creditors as stated in their notices were GBP988 14s. zd. (this being a judgment debt) and GBP2,129 13s. respectively. Buckley, J. dismissed the petition and the petitioner appealed. J.R. Bickford Smith for the petitioning creditor. Ralp....

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....e 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 Palmer's Company Law, 20th ed. (1959), p. 700, it is stated thus: "A petitioning creditor who cannot, get paid a sum presently payable has, as against the company, a right, ex debito justitiae, 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 co....

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....nting the company an offer of payment by instalments, and we are told (and of course I accept it) that between the dismissal of the petition and today that offer has been implemented, that is to say, Mr. Bickford Smith for the petitioning creditor says he received in fact a cheque from a firm of solicitors which has been cashed. I have no doubt that the opposing creditors have formed the view in their own, quite natural, material interests that if the petition is dismissed they will get something, and perhaps in due time everything, from whomsoever is providing the money, whereas if the company is wound up they will find an absence of anything available for anybody. That is of course a good explanation of why they oppose the petition. But a....

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....the facts and on what Romer L.J. said in that case that it follows that in this case there is nothing more to be said once it is established that two out of the three creditors, who admittedly are owed more than the petitioning creditor, prefer and express their preference for no order and 'no winding up. Here is a judgment creditor. Any assets which would be or could be found would be subject to execution at once, and, as I say, if special circumstances have to be shown I would have thought on the evidence that enough has been shown. With great respect to Buckley J. I do not think it was right simply to treat the fact of the majority opposition as conclusive. I am persuaded on the material in this case that the court in the exercise of its....