Clark and Others (Liquidators of West Calder Oil Co) v Wilson and Others: SCS 7 Jun 1878

A company was being voluntarily wound up when one of their creditors poinded the company’s goods for a debt due for expenses in an action of interdict. The liquidators and a majority of three-fourths of the company’s creditors then entered into an arrangement under the above-mentioned sections of the statute, with a view to restraining diligence. The third heading of the arrangement was as follows: ‘The rights of all parties under the voluntary liquidation shall be settled on the same footing as if there had been a winding-up by or subject to the supervision of the Court under and in terms of the Companies Act 1862.’
A petition at the instance of the liquidators, under the 138th section of the Companies Act 1862, praying the Court to restrain the diligence which had been used as above, refused on the ground that the heading of the arrangement quoted above aimed at introducing a new method of winding-up, viz., a voluntary winding-up proceeding on the same footing as a winding-up under the supervision of the Court, and was beyond the powers conferred by the 135th and 136th sections of the Act.
Opinion ( per Lord Shand) that as the petition raised a question directly ‘in the matter of the winding-up, ‘ it could competently under the 138th section of the Companies Act 1862, be brought before the Lord Ordinary on the Bills in vacation.

[1878] SLR 15 – 600


Updated: 24 January 2022; Ref: scu.577390