The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I do not think that the old authorities, properly read, had the effect of laying down any rule that the power to appoint a provisional liquidator is to be restricted in the way for which Mr Burke-Gaffney contends. No doubt a provisional liquidator can properly be appointed if the company is obviously insolvent or the assets are in jeopardy; but I do not think that the cases show that in no other case can a provisional liquidator be appointed over a company’s objection . . Section238 . . is in quite general terms. I can see no hint in it that it is to be restricted to certain categories of cases. The section confers on the court a discretionary power, and that power must obviously be exercised in a proper judicial manner. The exercise of that power may have serious consequences for the company, and so a need for the exercise of the power must overtop those consequences’ . . but in the case of a public interest petition, ‘the public interest must be given full weight’.
The general practice is for an undertaking as to damages to be given upon an ex parte application for provisional liquidators, but such an undertaking would not be required on an inter partes application. A cross-undertaking as to damages might not be required where ‘The Secretary of State was seeking to enforce the law, or was acting selflessly in the performance of a public duty directly or impliedly imposed by statute . .’
Judges:
Sir Robert Megarry V-C
Citations:
[1985] 1 WLR 149, [1984] BCLC 623
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Dobson v Hastings 1992
The Rules of the Supreme Court indicate that save when permitted under the rules, documents on the court file are not intended to be inspected or copied. There is no common law right to obtain access to a document filed in proceedings and held as . .
Cited by:
Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Applied – Securities and Investments Board v Lloyd-Wright and Another ChD 23-Jun-1993
The SIB sought injunctions pursuant to the 1986 Act, three to prevent continued breaches of the law and fourth, an asset freezing order. It was argued that although it might be right to dispense with a cross-undertaking in damages in relation to the . .
Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.
Company, Insolvency
Updated: 27 September 2022; Ref: scu.401969