The Kilmarnock Theatre Co., Ltd, in Liquidation, and Others v. Buchanan and Others [1911] ScotLR 547 (24 February 1911)

The Kilmarnock Theatre Co., Ltd, in Liquidation, and Others v. Buchanan and Others [1911] ScotLR 547 (24 February 1911)

A decree for expenses against liquidators in their representative capacity is enforceable against them personally if company assets are insufficient, but does not require the word 'personally' unless there is misconduct; liquidators retain recourse to company assets for indemnification.

Citation
[1911] ScotLR 547
Parties
Pursuer: The Kilmarnock Theatre Company, Limited, in Liquidation; Pursuer: Alexander Mitchell; Pursuer: James Robert Mackay; Defender: Robert Colburn Buchanan and Others
Jurisdiction
Scotland
Judgment Date
24 February 1911
Procedural Posture
Civil / Motion for Approval of Auditor's Report and Form of Decree for Expenses
Outcome
motion refused; decree for expenses approved against liquidators in representative capacity
Legal Topics
Liquidation, Personal Liability of Liquidators, Expenses, Form of Decree
Company Law Civil Procedure Liquidation Personal Liability of Liquidators Expenses Form of Decree

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Parties

The Kilmarnock Theatre Company, Limited, in Liquidation

Pursuer

Alexander Mitchell

Pursuer

James Robert Mackay

Pursuer

Robert Colburn Buchanan and Others

Defender

Procedural Posture

Civil / Motion for Approval of Auditor's Report and Form of Decree for Expenses

Legal Issues

  1. 1 Whether liquidators should be found personally liable for expenses in an unsuccessful action brought in their representative capacity
  2. 2 Proper form of decree for expenses against liquidators

Ratio Decidendi

A decree for expenses against liquidators in their representative capacity is enforceable against them personally if company assets are insufficient, but does not require the word 'personally' unless there is misconduct; liquidators retain recourse to company assets for indemnification.

Court Disposition

motion refused; decree for expenses approved against liquidators in representative capacity

Orders

  • Approve of the Auditor's report on the defenders' account of expenses
  • Decern for payment of £503, 9s. 3d. against Alexander Mitchell and James Robert Mackay, liquidators of the Kilmarnock Theatre Company, Limited