No. 409. 93. Proof of a debt by affidavit shall be sufficient unless the 35 VICTORIA, company or any creditor of, shareholder in, or contributory to it, shall require further proof of such debt; and any creditor share- Proof of debts by holder or contributory may at any time, by notice to any person affidavit. claiming to be a creditor of the company, require such person, whether he shall have previously given any proof of the debt claimed by him or not, to appear before the court on a day not to be less than three days from the time of the service of the said notice, and prove in the ordinary course of law the debt so claimed by him; and in default of his so appearing, or of proving to the satisfaction of the court the debt so claimed, or any part thereof, such debt, or such part thereof as shall not be so proved shall not be inserted in the statement next hereinafter mentioned; or, if inserted therein, shall be struck out by the court. 5.-Contributories. 94. If the assets of a company ordered to be wound up shall who are to be not be sufficient for payment of its debts and liabilities and of the contributories. costs charges and expenses of the winding up, and of such sums as may be required for the adjustment amongst themselves of the rights of the contributories herein described, the following persons shall be liable to contribute to such assets, such persons being hereinafter called contributories to the company. (1.) The persons who at the time of the commencement of the up. (II.) The real and personal representatives, in a due course (III.) The assignee or trustee in insolvency or committee in (IV.) Any married woman in whose name any share in the company shall be registered in the company's books. But no contribution shall be required from any contributory exceeding the amount unpaid on the share in respect of which the contribution shall be required. 6.—Statement of Assets List of Contributories-Settling thereof, and Proceedings thereunder. 95. After the realization of the company's property, including statement of the recovery of such calls as the liquidator shall be able to recover(a) assets and debts. he shall prepare a statement which shall show the assets of the company, distinguishing the sum or sums produced by the sale or sales of the company's property, and also all other moneys received or recovered by him, or paid in on account of the company, and also (a) On a winding up, suing for unpaid calls is not a condition precedent to suing for contribution, and the liquidator may recover the whole amount unpaid.-Simpson v. Hunt, 2 V. R. (L.), 54. No. 409. 35 VICTORIA, showing from, and by whom, and on what account received or paid in; and also setting forth a list of the debts proved; and, as far as shall then be known, of the sums which may be required for the adjustment of the rights of the contributories amongst themselves; and, in case such assets shall not be sufficient to liquidate the debts of the company and for payment of such sums as aforesaid, further stating what contribution per share, so far as the liability thereon will permit, will for those purposes be required from the contributories, and shall also in that case set forth a list of the contributories of the said company with, annexed to the name of each contributory, the number of shares held by him, and the sum to be paid in respect of such shares. The contribution to be made shall be such a sum upon each share (not exceeding the amount unpaid thereon) as, if paid on every share, would be sufficient with the assets of the company to liquidate its debts. And list of contributories. Statement and list of contribulodged in liqui tories to be dator's office and published in newspapers. Settling of list of contributories. Order on contri 96. The liquidator shall lodge such statement in his office, and immediately after the preparation thereof shall insert in one or more than one newspaper published in Melbourne, and one or more than one newspaper circulating in the district in which the company's office was situated in two consecutive numbers of such newspaper, or, if more than one, of each of them, a notice that such statement has been so lodged, and, in case such contributions as aforesaid shall be required, that a list of contributories is comprised in the said statement, and that on a day to be named in the said notice, not to be less than fourteen days from the last insertion thereof, the said list of contributories will be settled by the court, and that on that day, or any day to which such settling shall be adjourned, any objections to the said list by any contributory or creditor will be heard and adjudicated upon by the court. 97. Upon the day fixed for settling the list of contributories, or upon such other day to which such settling or the continuation thereof may be adjourned, and at which settling the liquidator shall be present, the court shall, after hearing any objections and answers to the list which may be urged, by the company or any contributory or creditor or by the liquidator, and on being satisfied that the contributions mentioned in such list will be necessary for the purposes aforesaid, settle such list, amending or altering the same if proper to do so, and with power on such settling to rectify the register of shareholders in all cases where such rectification is required for the purposes of justice. 98. After such list shall be settled the court shall make an butories to pay. order that the persons whose names shall be then thereon as contributories shall respectively pay the respective amounts which shall then be annexed to their names respectively, and such order shall be filed by the clerk. Notice to contributories. 99. Immediately after the making of the said order the liquidator shall send by post in a prepaid letter to each contributory a notice of the sum to be paid by him, setting forth the respective numbers of the shares in respect of which contributions are due, and the respective amounts of such contributions, and requiring such sum to be paid to him the said liquidator within ten days after the insertion of the last of the said advertisements. Such notice shall be deemed No. 409. to have been served at the time when the letter containing the same 35 VICTORIA, would be delivered in the ordinary course of the post; and in proving such service it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the post office. removal of his 100. At any time after the making of the said order any person Contributory named as a contributory on the said list may, on notice to the may apply for liquidator, apply to the court or the judge thereof that his name be name from list. removed from the said list, or that he be rated at a sum less than that which by the said list he is charged with, and the court or judge shall thereupon make such order as shall be right, and in the latter case, if so ordered, the order for payment of contributions shall apply to such lesser sum. equivalent to an 101. The order for payment of contributions shall as against Order to pay each contributory personally liable have the same force and effect order of justices. as an order of justices for the payment of any of the demands mentioned in the forty-first section of "The Justices of Peace Statute 1865"* and may after the lapse of the said ten days besic. enforced by the liquidator in his official capacity in the same manner and by the same process as any such order of justices may be enforced. If any such contributory shall be liable in a representative capacity the amount payable by him under the said order may be recovered by the liquidator in the case of a real or personal representative in a county court, and in the case of the assignee or trustee of the estate of an insolvent or person whose estate is under liquidation, by proof thereof against such estate, under "The Insolvency Statute 1871," and obtaining thereout in due course of law such amount or such dividends thereon as can be obtained. 102. In case the full amount of the said contributions cannot be Further obtained, and the contributions ordered shall not have been to the contributions. full extent of the amount unpaid on the shares of the contributories, the liquidator shall prepare and lodge as aforesaid a further statement setting forth the amount of the debts of the company still remaining unpaid, the amount necessary for their payment, and for the payment of the other sums aforesaid, the names of the persons who are to contribute to that amount, and the sum to be contributed by each, and the same course as to advertising and settling the list of contributories in the last-mentioned statement shall be pursued as herein is directed in regard to the list in the first-mentioned statement; and a corresponding order shall be made thereon with the like force and effect, and in like manner enforceable and recoverable, and a corresponding notice thereof given, and the person required to contribute may apply for a like order for removal of his name from such second list. to stand on so far as former 103. Before settling any such second list of contributories the No contributory court shall determine whether, and to what extent, the sums therein second list except charged are necessary, having regard to the possibility or otherwise contributories of recovering from any of the contributories in the first list the unable to pay. contribution or contributions theretofore charged against him or them or any part thereof: And the court shall allow the names on such second list to stand for such sums only as shall be necessary, having regard to such possibility or otherwise; but may afterwards amend such list, by increasing the sums so allowed in case the inability to 35 VICTORIA, recover any contributions shall make the same necessary, and shall be shown to its satisfaction. No. 409. When useless to proceed against a contributory. Liquidator may prove in insol vency of or administer estates contributory. Courts may control liquidator in any of such proceedings. How liquidator described in actions &c. Plan of distribution. 104. In determining upon such possibility or otherwise the court, in any case where the liquidator shall state that he has not taken legal steps to enforce against any contributory the contribution ordered against him on the ground that such steps would be fruitless, may on such evidence being given as it shall think sufficient of the truth of such statement accept the same as proof of the impossibility of recovering such contribution, and act accordingly. 105. The liquidator may prove in the matter of the insolvency of any contributory any contribution ordered to be paid, or other debt due, by such contributory to the company and receive dividends in respect thereof, and if necessary, in order to obtain payment out of the estate of any deceased contributory of any contribution ordered to be paid by him or other debt due by his estate to the company, take out letters of administration to such contributory; and bring any action or suit or take any other legal proceeding and do any other act that may be necessary for the purpose of recovering such contribution or debt, or for obtaining payment of any moneys due to or recovering the estate and effects of the company from a contributory or his estate, or from any other person or his estate, and which cannot be conveniently done in the name of the company, in all which cases the moneys claimed by him shall for the purpose of enabling him to take such proceedings and recover such moneys be deemed to be due to himself, and may also with the sanction of the court defend any action suit or other legal proceeding. 106. The court may on the application of the company or of any contributory thereto or creditor thereof control the action of the liquidator in any of the matters in the next preceding section authorized, and on such application make such order in respect of such matters as it shall think fit. 107. In any action suit or other proceeding brought or taken by or against a liquidator he shall be described by his proper name followed by the words "liquidator of the inserting the name of the company in full. 7.-Plan of Distribution. company," 108. After the property of the company shall be realized and (1.) The costs charges and expenses incurred in the ... £ s. d. ... £ s. d. ... (III.) Two weeks wages in full as a preferential ... ... ... £ s. d. £ s. d. £ s. d. 35 VICTORIA, No. 409. distribution. 109. Upon the completion of the schedule the liquidator shall Notice of plan of publish in the Gazette a notice stating that the schedule is open in his office for inspection by the contributors to and creditors of the company, and that the claims mentioned in the schedule will, after the lapse of fourteen days from the publication of the notice, be paid at the said office. 8.-Distribution of Surplus. 110. The court shall adjust the rights of the contributors Distribution of amongst themselves, and distribute any surplus that may remain surplus. amongst the parties entitled thereto. 9.-Dissolution of Company. the company. 111. When the winding up of a company shall be completed the Order dissolving court shall make an order that the company shall be dissolved from the day of the date of such order, and the company shall be dissolved accordingly, and by such order the court shall direct the manner in which the books and documents of the company are to be disposed of. 10.-Voluntary Winding up. 112. When at an extraordinary meeting of a company, which Voluntary shall not then be in debt, two-thirds in number and value of the winding up. shareholders therein shall have passed a resolution requiring the company to be voluntarily wound up the said company may be wound up, without resort to the court, and such majority shall thereupon by resolution determine the course to be pursued by the directors for the purpose, and the mode of disposal of any surplus of the company's property which may remain after the completion of the winding up; and on such winding up being completed such company shall become dissolved, and the books and documents thereof be disposed of as such majority shall direct. PART III. PREPAYMENT COMPANIES. 113. A company may be formed under this Act on a system to Prepayment be called the "Prepayment System." In such a company no part of companies. its expenditure incurred at or previous to the time of making a call |