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Who may petition and grounds for winding up
Who may petition and grounds for winding up
September 1997
45.13 Who may petition
A petition to wind up a company may be presented by the company, the directors, any creditor or creditors, a contributory or contributories, the clerk of a magistrates’ court in the exercise of the power conferred by section 87A of the Magistrates Court Act 1980 (enforcement of fines imposed on companies), any combination of the above parties, the official receiver, the Secretary of State, an administrative receiver or administrator, the supervisor of a composition or arrangement and the Attorney General (in the case of a charitable company) [Note 1] [Note 2] [Note 3].
45.14 Non-administrative receiver
Case law suggests that a non-administrative receiver can present a petition for winding up in the name of the company and as its agent [Note 4].
The above list is not exhaustive. Some regulatory bodies have the power to wind up their members or persons authorised by them under related legislation e.g. the Bank of England if the company is an authorised institution under the Banking Act 1987.
45.15 Company directors
Where a petition is presented by the directors, they must petition in their own names rather than in the name of the company and, in the absence of a formal board resolution, they must act unanimously [Note 5]. However, if the majority of directors at a board meeting have resolved that the company should be wound up, an individual director may present a petition on behalf of them all [Note 6].
45.16 Creditor
The term creditor applying to presentation of petitions includes contingent and prospective creditors who may petition on the ‘just and equitable’ ground [Note 7] [Note 8].
45.17 Voluntary
Where a company is already in voluntary liquidation and a petition is presented by a creditor, the court will take into account the wishes of the majority of the outside creditors and may exclude the views of the creditors even if they are also substantial creditors [Note 9].
45.18 Assignee
An assignee of a debt owed by a company has the right to present a winding up petition, even if the assignment is an equitable one [Note 10]. Where the assignment takes place after the presentation of the petition, the court can amend the petition and substitute the assignee as petitioner [Note 11].
45.19 Claims in tort
On the basis of the decision in Re Pen-Y-Van Colliery (1877) 6 ChD 477, a person having a claim in tort for unliquidated damages could not present a winding-up petition. However, in describing a "liability" in relation to the winding up of a company, r13.12 states that the term includes any liability in tort, and that the company becomes subject to that liability by reason of an obligation incurred at the time when the cause of action arose [Note 12]. It would appear, therefore, that a person having such a claim may be able to pres
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