To those accustomed to the comparatively flexible inductive methods of the common law, a statute-based subject such as company liquidation wears a somewhat forbidding aspect. But if a statute is regarded simply as a series of legislative rather than judicial expressions of legal principle, it is possible to approach a topic of this kind in much the same spirit as any branch of judge-made law. What I have sought to do here is to treat the subject of winding up in a functional, and, it is hoped, more comprehensible, fashion than is possible through the medium of the traditional section-by-section commentary on the Companies Act. Inevitably this has involved taking liberties with statutory provisions to a degree which is perhaps difficult to justify according to ordinary canons of legal interpretation; but in doing so I have been encouraged by the belief that readers of this treatise may be expected to possess a copy of the Companies Act to which reference may at any time be made for the ipsissima verba of the legislature.
The principal problems facing anyone who embarks on a task such as this are questions of arrangement and emphasis. The former has given rise to difficulties which I cannot claim to have satisfactorily resolved, but the arrangement adopted is one based for the most part on the chronological order of events in winding up. As regards emphasis, it has been necessary to assume in the reader a basic knowledge of the substantive principles of company law, particularly in relation to matters such as the liabilities of directors and promoters and the mechanics of becoming a member of a company. Not to have done so would have involved writing a textbook of the law of companies as a whole, and this is not the purpose of the present thesis. In addition, I have deliberately placed less emphasis on some aspects of liquidation, such as the participation rights of preference shareholders, which through the efforts of other commentators are now fairly well known; and I have given rather less detailed attention to matters such as preferences, debts provable in winding up, and disclaimer, which are common to both bankruptcy and liquidation.
Subject to this, the thesis purports to deal with the whole of the law relating to winding up including the dissolution of companies. As indicated by its title, however, treatment is confined to the liquidation of registered limited liability companies. Receivership and official management have been excluded from its scope, as also have amalgamations and schemes of arrangements. The latter omission is perhaps less easy to justify, but can be accounted for by the inordinate size of these topics, as well as by the paramount necessity for imposing some limit on excursions outside the basic theme. Unregistered companies have been excluded because of their comparative rarity, and no-liability companies because they are of purely local interest, being confined to mining ventures in Australia and differing from the more orthodox form of company only in respect of the peculiar right enjoyed by shareholders of forfeiting their shares as the price of avoiding payment of calls. Finally, the exposition is based on the Uniform Companies Acts of the Australian States, but any limitation which this imposes is formal only since the law of Australia on this matter differs in few material respects from that of the United Kingdom. And as this is also true of most of the member and former member states of the British Commonwealth, I have been able to draw on the vast body of judicial authority in other jurisdictions in order to illuminate the topic. For facility of reference a comparative table of the principal sections of the companies legislation of some of these countries has been included at the beginning of this work.