Bridport Old Brewery Co. (1867), L.R. 2 Ch. App. 191. But it was a resolution that in the judgment of the company, though solvent as respects creditors, it could not by reason of its liabilities continue its business, and that it was advisable that it should be wound up. The resolution is not shewn to be untrue by proving that the liabilities were comparatively small and that the company was solvent as regards creditors. Moreover, under sec. 5 of the statute, the jurisdiction to make an order for winding up in nowise depends upon the passing of such a resolution. It would require much more than has been shewn here to invalidate the order pronounced by Judge Barron upon this ground for want of jurisdiction or suppression of material facts or fraud. (4) A petition for winding up may be presented by the company or by any contributory of the company: sec. 32. "Contributory" means every person liable to contribute to the assets, "and shall also in all proceedings prior to the final determination of such persons include any person alleged to be a contributory:" sec. 3, sub-sec. 2. In several English cases it has been held that the petitioner must admit himself to be a contributory: In re Continental Bank Corporation (1867), W.N. 114; Lindley's Law of Companies, 6th ed., p. 844. I confess to difficulty in understanding how the words "alleged to be a contributory," can be read as equivalent to "who admits himself to be a contributory." But under sec. 32 the company itself may present the petition, and we have here a case in which the company was desirous of being wound up, as shewn by its own resolution, and the fact that the company was represented upon the presentation of the petition and assented to the making of the order. This ground of objection, which would probably in any event be available only to the company itself, therefore, in my opinion, fails. (5) If, as the plaintiff contends, the resolution of the 16th of March, 1905, was ineffectual as an extraordinary resolution because of informality in the notice calling the meeting, there was no liquidator acting when the winding-up order was made, and it was therefore competent for the county Judge, under sec. 25, sub-sec. 2, to appoint a liquidator. The appointment was made upon the application of the defendant Miller. The company alleges that Miller is a shareholder. The mere fact that Miller denies he is a shareholder does not enable me D.C. 1907 DEACON v. KEMP MANURE SPREADER Co. Anglin, J. D.C. 1907 DEACON V. KEMP MANURE SPREADER Co. Anglin, J. to say, without other evidence, that he is not a shareholder. His application for stock is before me, and it is proved that he is being sued by the company upon his subscription. But by sec. 3, subsec. 6, members of the company are defined as "those persons only who for the time being are entitled to vote at general meetings of the company," and by R.S.O., ch. 191, sec. 64, it is enacted that "no shareholder being in arrear in respect of any call shall be entitled to vote at any meeting of the company." Under this provision it is contended that Mr. Miller is not a member. The liquidator appointed, however, was a person named as liquidator by the company itself on the 16th of March, when it attempted to pass an extraordinary resolution for winding up. The company was represented upon Miller's application for the appointment of Mr. Jeffrey as liquidator, and assented to such an appointment. I am not prepared to hold that under these circumstances, merely because the applicant Miller may not have been a fully qualified member, the county Judge had not jurisdiction under sec. 25 to appoint Mr. Jeffrey, the nominee of the company, as liquidator. As an incident of pronouncing a winding-up order he probably had jurisdiction under sec. 5 to name a liquidator. (6) In the present case the affairs of the company are not in such a position that nothing is to be done by the liquidator except to distribute assets among the shareholders: Re Amalgamated Syndicate, [1897] 2 Ch. 600, 604. Certain outstanding book debts and accounts due to the company were at the time of the making of the winding-up order still to be collected, and, as shewn by the order of the 19th of November, certain liabilities of the company had then still to be paid. But even if it be improper to make a winding-up order where the sole purpose to be served is the distribution of assets and the adjustment of the rights of shareholders, I doubt whether it could be said that a Court pronouncing such an order had no jurisdiction to make it. Section 5 enables the Court to make an order where it is of opinion that "it is just and equitable that the company should be wound up." This language is very broad and gives to the Court a very wide discretion. It seems to me impossible to hold that, where jurisdiction is conferred in such terms as these, and it has been shewn that the making of the winding-up order is in the opinion of the company itself a proper and desirable thing, and in the best interests of all concerned, the exercise of that jurisdiction by the Court can be reviewed in such an action as the present. (7) As I have already stated, the Massey-Harris agreement was referred to in the petition, and there is nothing before me to shew that the document itself was not before the county Judge. If he desired to see it he certainly could have asked for and obtained it before making the order. Moreover, the provision in that agreement for the delivery of the charter to the Massey-Harris Co. is, in my opinion, ultra vires of the defendant company. It certainly would not stand in the way of any legal requirement that the charter should be delivered up, upon dissolution of the company, to the Provincial Secretary for cancellation. The whole case of the plaintiff, so far as it rested upon allegations of fraud in the obtaining of the order for winding up, depended upon the supposition that the winding-up order prejudicially affected the interests of the common shareholders in the distribution of the capital of the company. He has entirely failed to make out such a case of fraud as would justify interference. As stated in Johnston v. Barkley (1904), 10 O.L.R. 724, at p. 728: "It is obviously necessary, in order to prevent the abuse of the right to have the judgment re-opened upon the ground of fraud, that the fraud should be that of the party who has obtained the judgment; that it should be clearly made out; and that it should have undoubtedly been at the foundation of the decision which has been attacked." Fraud has not been clearly made out, and it has certainly not been shewn that that which the plaintiff alleges to have been fraud lay at the foundation of the decision attacked. In the view which I have taken of the plaintiff's case it is unnecessary to decide whether an action lies in this Court to obtain a declaration that a winding-up order pronounced by a county Judge under the Ontario Winding-up Act is null and void, and to set the same aside. The statute provides for an appeal by any party dissatisfied with any order or decision of the Court in any proceeding under the Act (sec. 27); and also provides (sec. 33) that the Court may at any time after the order has been made for winding up a company, make an order staying all proceedings in relation to the winding up, either D.C. 1907 DEACON v. KEMP MANURE SPREADER Co. Anglin, J. D. C. 1907 DEACON v. KEMP MANURE SPREADER Co. Anglin, J. altogether or for a limited time, on such grounds and subject to such conditions as the Court deems fit. The plaintiff, being a person affected by the winding-up order, could probably have appealed when that order came to his notice, under sec. 27. If not, he could have moved under sec. 33, and if his application were refused he could have appealed from such refusal. In view of these provisions of the statute, it seems to me more than doubtful whether the present action could be maintained; but it is unnecessary to determine that question. As pointed out above, the plaintiff has failed to satisfactorily establish want of jurisdiction in the county Judge upon any of the grounds which he has taken. His good faith in bringing this action, in view of the conditions under which his former action was dismissed, the company undertaking to pay his costs, is, I think, open to serious question. The plaintiff having sought to shew want of jurisdiction and to establish fraud, by which, in his reply, counsel for the plaintiff asserted that he meant moral fraud and dishonesty, and having failed upon both branches, his action will be dismissed with costs From this judgment the plaintiff appealed to a Divisional Court. On October 10th, 1907, the appeal was heard before a Divisional Court composed of BOYD, C., MAGEE, and MABEE, JJ. G. H. Watson, K.C., for the appellant. W. H. Blake, K.C., for the respondents the company and Jeffery. October 11. The judgment of the Court was delivered by: BOYD, C.-The Ontario Winding-up Act assigns the duties thereunder to the county court, and provides the means whereby the orders and decisions of the Judge may be reviewed. If an order to wind up is made in violation of the provisions of the statute, or is obtained by fraud or misrepresentation, or is otherwise open to attack, any shareholder prejudicially affected may obtain redress, either by direct application to the Judge, when the order has been made ex parte as far as he is concerned, or, if made after notice to him, by way of appeal to the appellate court provided by the statute, i.e., the Court of Appeal. No jurisdiction appears to be possessed by or given to any branch of the High Court to intervene and set aside or vacate or declare invalid what has been done by the county court Judge under the Ontario Winding-up Act. All the matters complained of in this action are open for the consideration of the Judge of the county court, with an appeal from his decision (if not satisfactory) to the Court of Appeal. It is incompetent for the plaintiff as a shareholder to seek relief in this Court against what has been done in the winding-up of the company by the county court Judge. The course to be pursued when it is contended that the Judge has made a void order or is misled by fraud, etc., is considered in Re Equitable Savings, Loan and Building Association (1903), 6 O.L.R. 26. Section 27 of the Act, which enables any "party" to apply for relief, is not restricted to one who is a party to the proceeding complained of; but is to be read as including at least every member of the company who feels aggrieved. See also sec. 33: Welford v. Beazly (1747), 3 Atk. 503; and Barlow v. Osborne (1858), 6 H.L.C. 556. I would dismiss the appeal from Mr. Justice Anglin on this ground, with costs. D. C. 1907 DEACON v. KEMP MANURE SPREADER Co. Boyd, C. G. F. H. [DIVISIONAL COURT.] SIMPSON V. EATON. Easement-Light-Obstruction to Access of Light to Windows-Claim Uuder The rules settled by the courts in case of the interference with ancient lights Held, also, that the existence at the time the grant to the plaintiff's predecessor 11-VOL. XV. O.L.R. D.C. 1907 June 18. October 7. |