Secretarial practice

Bibliographic data

Monograph

Identifikator:: 1828236004

URN:: urn:nbn:de:zbw-retromon-249926

Document type:: Monograph

Title:: Secretarial practice

Edition:: fourth edition

Place of publication:: Cambridge

Publisher:: W. Heffer & Sons Ltd

Year of publication:: 1930

Scope:: viii, 987 Seiten

Digitisation:: 2022

Collection:: Economics Books

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Chapter

Document type:: Monograph

Structure type:: Chapter

Title:: Chapter XX. Winding up

Collection:: Economics Books

Fraudulent Preference. Execution Creditors. 24 SECRETARIAL PRACTICE Another matter must be noticed affecting the getting in of the assets of the company. S. 265 of the Act provides that where a company is being wound up, any act which would have been a fraudulent preference had the company been an individual trader in bankruptcy is an undue or fraudulent preference of the creditors of the company and is invalid. The effect of this provision is to make the bank- ruptcy law for the time being as to fraudulent preference applicable mutatis mutandis to companies in liquidation. In bankruptcy, by virtue of s. 44 of the Bankruptcy Act, I9I4, any conveyance or transfer of property, or any pay- ment made by a person unable to pay his debts to any creditor, with a view to preferring that creditor to other creditors, is void if made within three months before the bankruptcy. In the case of voluntary winding up, the period of three months dates backwards from the resolution for winding up. It is incumbent upon the liquidator if, on examination of the company’s affairs, it appears that any such fraudulent preference has taken place, to take steps, by application to the Court, under s. 252, if necessary, to have the transaction set aside and get back the money or property. The question as to whether a particular transaction does or does not constitute a fraudulent preference is often a difficult one. As was stated by Lord Esher in New’s Trustees v. Hunting (1897), 2 Q.B. 27, ‘the question whether there has been a fraudulent preference depends not upon the mere fact that there has been a preference, but also on the state of mind of the person who made it. It must be shown, not only that he has preferred a creditor, but that he has fraudu- lently done so.” It has been held that the preferring of the creditor must be the dominant view with which the preference was made, but not necessarily the sole view. A payment made bond fide under pressure will not be a fraudulent pre- ference. The burden is on the liquidator, who seeks to set aside a transaction as being a fraudulent preference, of showing the insolvency of the company—not as a rule a difficult task—as well as of showing the intention to prefer. S. 265 also makes void to all intents and purposes any conveyance by a company of all its property to trustees for the benefit of all its creditors. It will be noted that this provision, anlike the provision as to fraudulent preference, applies only where the conveyance is of all the property and all the creditors benefit. Another matter affecting the getting-in of the assets of the company must be noticed. Under s. 268 an execution

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