Winding up of a Company in Myanmar

U Thit Oo Hlaing

Abstract
The Word "company" ordinarily means an association of a number of individuals
formed for some common purpose. In doing business transactions, one of the most
popular business organizations is company. The defining feature of a corporation is
its legal independence from the people who create it. When a company is created by
its members or shareholders, it is needed to apply a permit to trade under Myanmar
Law. A company is formed by relevant company law and it possesses a distinct
personality different from its shareholders, members and directors. The relations
between these persons and company are only by contract(s). A company can die
when they lose money into insolvency. The situations relating to company creation
and dissolution are governing by the Myanmar Companies Act, 1914, the Myanmar
Companies Rules, 1940, and the Special Companies Act 1950. The Myanmar
Companies Act, 1914 was amended twice in 1989 and 1991. In Myanmar there are
three ways of winding up of a company, by Court, voluntary winding up, it may be
either by members or by creditors, and by supervision of the Court. The process of
winding up of a company may be done by a liquidator. He shall carry out the
company winding up in accordance with the Myanmar Companies Law.

Introduction
The Word "company" ordinarily means an association of a number of
individuals formed for some common purposes. It involves two ideas: firstly, the
members of the association are so numerous that it cannot aptly be described as a firm
or partnership, and secondly, a member may transfer his interest in the association
without the consent of the other member. Such an association may be incorporated
according to law where upon it becomes a body corporate with perpetual succession
and a common seal. The four defining characteristics of the modern corporation are:
(i) Separate Legal Personality of the corporation, (ii) Limited Liability of the
shareholders, (iii) Shares (if the corporation is a public company, the shares are traded
on a stock exchange, such as the London Stock Exchange, New York Stock
Exchange, (iv) Delegated Management; the board of directors delegates day-to-day
management of the company to executives. The defining feature of a corporation is its
legal independence from the people who create it. Besides, companies are recognized
by the law to have rights and responsibilities like actual people. Companies can
exercise human rights against real individuals and the state, and they may be
responsible for human rights violations. Just as they are "born" into existence through
its members obtaining a certificate of incorporation, they can "die" when they lose
money into insolvency. Winding up of a company is the normal means by which a
company's existence is brought to an end. It is also referred to either alternatively or
concurrently in some jurisdictions as liquidation or dissolution. Winding up of
company comes in three forms, by the Court or, voluntary winding up (it may be
either members' voluntary winding up, or creditors' voluntary winding up) or winding
up by supervision of the Court.
Where a company goes into liquidation, normally a liquidator is appointed to
gather in all the company's assets and settle all claims against the company. If there is


Lecturer, Department of Law, Myitkyina University
2

any surplus after paying off all the creditors of the company, this surplus is then
distributed to the members. Today the most important form of business organization
in Myanmar is the company. The company formed in Myanmar is governed by the
Myanmar Companies Act, 1914. It is enacted as India Act VII, 1913 and came into
operation on 1st April, 1914.

Winding-Up of a Company in Myanmar

In the winding-up of a company it gives up its business sells off its assets,
pays its debts or, if it is insolvent, does so to the extent that its fund allows and
distributes whatever surplus remains amongst its shareholders or otherwise as its
memorandum or articles of association may provide.1
The conduct of the winding-up is placed by law in the hands of a liquidator,
and on his appointment the director's power to manage the business of the company
lapses.2
The company continues in being throughout the process of winding-up, there
is still a corporate personality, and all corporate acts in the course of the liquidation,
such as the transfer of property and the constitution of legal proceedings, are done in
its name rather than by the liquidator in his own name. The company ceases to exist
only by the formal act of dissolution after the winding-up procedure has been
completed.3
Definition of Winding-Up
According to Block's Law Dictionary, 3rd editions, "winding-up of a company'
means the process of setting accounts and liquidating assets in anticipation of
corporation's dissolution.
In Oxford Dictionary of Law, 6th edition, winding-up is a procedure by which
a company can be dissolved. It may be instigated by members or creditors of the
company (voluntary winding-up) or by order of the court (compulsory winding-up).
In both cases the process involves the appointment of a liquidator to assume control of
the company from its directors. He collects the assets, pays debts, and distributes any
surplus to company members in accordance with their rights.
Once a company is in serious difficulties, the company's life comes to an end.
The existence of a company is brought to an end by winding up and ultimately
dissolution. The company's legal personality disappears through dissolution. The most
reason for a company to be wound up is that it has become insolvent, unable to pay its
debts.
If it attempts to reschedule its debts, it will find a sponsor or otherwise raise
extra funds. Then all fail, the company must come to a compromise or enter a scheme
of arrangement with its creditors if it wishes to continue trading and avoid winding
up.
Corporate liquidations are divided into;

1
Sealy, L. S, Cases and Materials in Company Law, 6th Edition, 1996, p. 613
2
Ibid.
3
Ibid, p-614
 3

(a) voluntary winding up (either by members when the company is solvent or by

creditors when insolvent);
(b) compulsory winding up (commenced by a petition of either the members of the
company or creditors and ordered by the court): and
(c) winding up under supervision of the court (similar to a compulsory winding-up).
This process is carried through by a liquidator whose functions are -
(i) to settle the list of contributories;
(ii) to collect the company's assets;
(iii) to discharge the company's liabilities to its creditors;
(iv) to redistribute the surplus (if any) to the contributories according to the rights
attaching to their shares of the company's capital.4
Kinds of Winding-Up of Company
In Myanmar the winding-up of a company may be either,
(i) by the Court; or
(ii) voluntary; or
(iii) subject to the supervision of the Court.5
Winding-up by the Court
This type of liquidation is ordered by the Court. A number of circumstances or
grounds on which a company may be wound up by the court. The main reasons are
(a) the company has by special resolution resolved that the company be wound up
by the court;
(b) the company is unable to pay its debts;
(c) the court is of the opinion that it is just and equitable that the company should be
wound up.6
A company may be wound up by the court when a number of situations occur
- the most common being when the company is unable to pay its debts. A petition for
winding-up may be presented by the company, but is normally presented by the
creditor. When there is a petition for winding-up, the court is not forced to make an
order, but if it does, a liquidator is appointed who realizes the assets and pays the
creditors, handing over the surplus (if any) to the shareholders. When the company's
affairs are fully wound up, the court will make an order dissolving the company.
The liquidation proceedings in a compulsory winding up are conducted by a
liquidator appointed by the Court.7 The objective of a compulsory winding up is to
bring the operations of a company to a close, realize its assets and distribute the
proceeds among its creditors in the due course of administration (and if relevant, any
remaining assets among its shareholders) in accordance with their rights and interests.

4
Smith & Keenan's, Company Law for Students, 10 th Edition, 1996, p. 473
5
Section 155 of the Myanmar Companies Act, 1914
6
Simon Goulding, Principles of Company Law, 1996, p.313
7
Section 171 A of the Myanmar Companies Act 1914
4

In brief, compulsory winding up of a Myanmar-incorporated company is appropriate

where;8
(i) the company has by special resolution resolved that the company be wound up
by the Court;
(ii) default is made in filing the statutory report or in holding the statutory meeting;
(iii) the company does not commence its business within one year from its
incorporation or suspends its business for a whole year,
(iv) the number of members is reduced, in the case of a private company, below two
or, in the case of any other company, below seven,
(v) the company is unable to pay its debts, or
(vi) the court is of the opinion that it is just and equitable, that the company should
be wound up.
Although members will often prefer a voluntary winding up, a company may
pass a special resolution for winding up by the Court. A majority of not less than 75
percent of the members entitled to vote and present in person or by proxy (where
proxies are allowed) must resolve that the company be wound up compulsorily at a
general meeting of which not less than 21 days notice specifying the intention to
propose the resolution as a special resolution has been duly given.
In the Case of May Li Aung International Co. Ltd V. Emarial Rose Garden
Ltd and two, in relation with the applicability for winding-up of company, under
section 166 of the Myanmar Companies Act, it is provided that an application to the
Court for the winding-up of a company shall be by petition presented, subject to the
provisions of this section, either "by the company", or by any creditor or creditors. In
this case, the company wanted to be dissolved by appellant is Emarial Rose Garden
Ltd. This company is created by the combination of May Li Aung International Co.
Ltd and Emarial Development Co. Ltd. It can be seen that the Emarial Rose Garden
Ltd is neither May Li Aung International Co. Ltd nor Emarial Development.
Another reason to wind up a company is inability to pay debts. A company is
insolvent when the liabilities of the company (actual, contingent and prospective)
exceed its present and future assets. If it is proved to the satisfaction of the Court that
the company is unable to pay its debts, then the unpaid creditor can apply for the
company to be wound up compulsorily.9 Where a creditor serves a statutory notice on
a company and the company without any just cause fails or neglects to pay the
demand, the creditor is entitled to a winding up order.
If the Court is of opinion that it is just and equitable that the company should
be wound up it will order the winding up of the company. The expression "just and
equitable" is not confined to cases similar to those covered by the other grounds in the
section but gives the Court power to order the winding up of a company if it is of the
opinion that such order would be just and equitable. The Court may wind up a
company on just and equitable grounds where;
(i) shareholders whose conduct requires investigation could, by reason to their
majority shareholding, prevent the necessary resolution for winding up being
passed;
8
Ibid, Section 162 and 166
9
Ibid, Sections 162 (v) and 163
 5

(ii) there is a deadlock in the management of the company;

(iii) the company is carrying on business which is illegal;
(iv) there is a justifiable lack of confidence in the conduct and management of the
company owing to misappropriation of funds or the proven dishonesty of the
directors, or
(v) in a private company, grounds exist which would justify the dissolution of
partnership.
The procedure in a compulsory winding up is as follows;
(i) a petition, verified by affidavit, is presented to the court;
(ii) notice of the presentation of the petition must be advertised at least fourteen
days before the date set for the hearing of the petition.
(iii) the company or its members may apply to have the court stay or restrain any
legal proceedings against the company.
(iv) the petition is heard and the court may dismiss it, adjourn it, make an interim
or any other order or grant it;
(v) if granted, the Official Receiver is, in practice, automatically appointed
provisional liquidator and remains the liquidator unless the creditors wish to
nominate their own liquidator.
(vi) the order must be sent to the Directorate of Investment and Company Affairs
for filing;
(vii) a statement of affairs must be submitted to the Official Receiver by the
directors; and
(viii) thereafter, the liquidation proceeds in much the same way as a voluntary
liquidation, subject to the major difference that all steps must be sanctioned by
the Court.
Voluntary Winding-Up
The company can resolve by special resolution that the company be wound up
or, more quickly, by extraordinary resolution that it cannot by reason of its liabilities
continue its business and that it is advisable to wind up.10
The principal advantage of a voluntary winding up over a compulsory
procedure, as far as the members of a company are concerned, is that control remains
with the members (or creditors, as the case may be) and the timing and pace of each
step of the proceedings can be controlled without reference to the Court. The two
types of voluntary winding up are a members' voluntary winding up and a creditors'
voluntary winding up.
In general, a company may be wound up voluntarily;11
(i) when the period (if any) fixed for the duration of the company in Articles of
Association expires or upon the occurrence of the event (if any) for which the
company's Articles of Association provide that the company is to be dissolved

10
Simon Goulding, Principles of Company law, 1996, P.314
11
Section 203 of the Myanmar Companies Act 1914
6

and the company in general meeting passes a resolution requiring the company
to be wound up voluntarily;
(ii) if the company resolves by extraordinary resolution that the company be wound
up voluntarily; or
(iii) if the company resolves by extraordinary resolution to the effect that it cannot
by reason of its liabilities continue its business and that it is advisable to wind-
up.
There are two different types of voluntary winding-up, a members' winding-up
and a creditors' winding-up. A members' winding-up is a voluntary winding-up where
a director's statutory declaration of solvency has been made and a creditors' winding-
up is one where such a declaration has not been made.
Members' voluntary winding-up
The statutory declaration of solvency essential to this form of winding up is
made by the directors (or in the case of a company having more than two directors,
majority of them), at a meeting to the effect that they have made a full enquiry into
the company's affairs and that they have formed the opinion that the company will be
able to pay its debts in full, together with interest, within such period, not exceeding
12 months from the commencement of the winding up, as may be specified in the
declaration.12 To be effective the declaration must be made within five weeks
immediately before the passing of the resolution to wind up and it includes as recent a
statement of the company's assets and liabilities as practicable. 13 This declaration
must then be delivered to the registrar within 15 days after the passing of the
resolution to wind –up.14
A members' voluntary winding up can only proceed where, in the opinion of
the directors, the company is solvent. To this end, a majority of the directors must
swear a statutory declaration of solvency.15 If no declaration is made, a creditors'
voluntary winding-up will follow. The declaration of solvency must state that the
directors have fully investigated the company's affairs and that they have concluded
that the company will be able to pay off all its creditors within 12 months of the day
on which its members resolve to wind up the company.16
The procedure for a members' voluntary liquidation is, in outline, as follows.17
(i) a board meeting must be held at which a majority of the company's
directors makes the statutory declaration of solvency;
(ii) within five weeks of the declaration, a special resolution must be passed
by a general meeting of the shareholders and the usual notice
requirements for the meeting must, of course, be complied with;
(iii) within 14 days of the resolution being passed, the company must
advertise that the resolution has been passed;

12
Section 89 of the Myanmar Insolvency Act 1986
13
Ibid, Section 89 (2)
14
Ibid, Section 89
15
Section 207 of the Myanmar Companies Act 1914
16
Ibid, Section 201 (1)
17
Ibid, Section 208 to 208 (e)
 7

(iv) either when passing the special resolution or later, the shareholders in
general meeting must appoint a liquidator.
(v) on the appointment of a liquidator, the directors cease to be in control of
the company;18
(vi) the liquidator takes control of the company's assets, advertises for creditors
of the company and either accepts or rejects proofs of debt lodged by
creditors, investigates the conduct of the company's affairs and settles lists
of assets, liabilities, contributories, creditors, etc;
(vii) once all of the assets have been distributed to the creditors (pari passu
subject to the order of priority), the liquidator prepares a statement of final
account (the Statement) which records how the company's property has
been disposed of;
(viii) the Statement is produced to the shareholders at a final general meeting
which is called by publishing a notice at least one month before the
meeting; and
(ix) the Statement is then to be filed with the Directorate of Investment and
Company Administration and after three months the company is dissolved.
Creditors' voluntary winding-up
Although called a creditors' voluntary winding up, a creditor may not call for a
company to be voluntarily wound up. The call for the voluntary winding up of the
company may only be made by the members. Where the directors feel unable to make a
declaration of solvency then the "members' voluntary winding up" becomes a "creditors'
voluntary winding up". In such circumstances, the company must call a meeting of its
creditors and invite them to appoint a liquidator and up to five persons to sit on a
Committee of Inspection to assist the liquidator.19 The company in general meeting may
then appoint up to five more person to sit on the committee, subject to the approval of
the creditors. As in the case of a members' voluntary liquidation, the directors' powers
cease and pass to the liquidator upon the appointment of the liquidator.20
The usual procedure for a creditors' voluntary liquidation is, in outline, as
follows.21
(i) The directors call a meeting of the company to pass a special resolution that
the company be voluntarily wound up. At this meeting, a liquidator is
nominated by the company.
(ii) The company advertises the meeting of the creditors of the company. The
creditors' meeting has to be held on the day of or the day after the passing of
the resolution to enter into voluntary liquidation.
(iii) At the creditors' meeting, the creditors accept the company's nomination or
choose a liquidator of their won. The winding up then begins and, where
required by the creditors, a committee of inspection may be appointed.

18
Section 208 (a) (2) of the Myanmar Companies Act 1914
19
Section 209 (c), Ibid.
20
Section 209 (d) (2) Ibid.
21
Section 209 to 209 (h), Ibid.
8

(iv) The directors must produce a full statement of the position of the company's
affairs together with a list of creditors and the estimated amount of their
claims at the creditors' meeting.
(v) The resolution for a voluntary winding up is to be advertised within 10 days of
being passed.
(vi) The liquidation then proceeds in the same way as outlined for a members
voluntary liquidation.
According to the Myanmar Companies Act, 1914, it can be seen that there is a
provision relating to persons who are able to make a petition for winding-up of a
company but there is no provision relating to companies which are to be applied for
winding up.22
Winding-up by the Supervision of the Court
When a company has by special or extraordinary resolution resolved to wind
up voluntarily, the Court may make an order that the voluntary winding up shall
continue subject to such supervision of the Court and with such liberty for creditor,
contributories or others to apply to the Court and generally on such terms and
conditions as the Court thinks just.23 In deciding between a winding up by the Court
and a winding up subject to supervision the Court may have regard to the wishes of
the creditors and/ or contributories.24
The Court has a discretion to pass a supervision order and it may take into
consideration such matters as:
(i) the delay or negligence on the part of the liquidator to realize the assets of the
company;
(ii) the liquidator not acting properly or with due regard to the rules of the winding
up or otherwise being partial to any creditor or other person;
(iii) the resolution for voluntary winding up having been obtained by fraud; or
(iv) the powers of the liquidator appear to be insufficient for the purpose of
winding up in so far as the interests of creditors or contributories are
concerned.
A voluntary winding up under a supervision order remains a voluntary
winding up in character, but the liquidator obtains many of the advantages of a
compulsory winding up.25 The main such advantage is that, unlike a true voluntary
winding up, no action can be commenced or proceeded with against the company
without the leave of the Court.26
The Effect of Company Winding-Up
At the event of a company winding-up, it is taken into consideration that the
liabilities of directors and officers.
The Court may, on an application make to it by the liquidator or by a creditor
within three years from the later of the date of the first appointment of a liquidator or

22
U Than Aung V. Mr. Lim Chit Min, 2002 MLR 393
23
Section 221 of the Myanmar Companies Act 1914
24
Section 223, Ibid.
25
Section 225(1) Ibid
26
Section 225(2) Ibid
 9

of the misapplication, misfeasance or breach of trust, as the case may be, enquire into
the conduct of any of the directors, manager or other officers of the company who are
suspected of having misapplied, retained or become liable or accountable for any
money or property of the company or of having been guilty of misfeasance or breach
of trust in relation to the affairs of company. The Court may, if it thinks fit, compel
the director, manager or other officer to repay or restore to the company the money or
property (with interest) or order him/her to contribute to the assets of the company by
way of compensation in respect of the misapplication, misfeasance or breach of
trust.27
In addition to any civil liability, the Court may prosecute any director,
manager or other officer of a company suspected of committing an offence in relation
to the affairs of the company for which he/she is criminally liable. 28 The Court can, if
it thinks fit, also direct that a delinquent director be prosecuted, without the assent and
even in spite of the dissent of the class or classes of shareholders at whose expense the
prosecution would be instituted.
If any director, manager or other officer of a company which is in the course
of winding up destroys, mutilates, alters, falsities or fraudulently conceals any books,
papers or securities or makes or is privy to the making of any false or fraudulent entry
in any register, book of account or document belonging to the company with intent to
defraud; or intentionally gives false evidence, he/she is liable to imprisonment for a
term of up to seven years and a fine.29
Some clarification of the position for English law was made in West Mercia
Safetywear v Dodd. Here, D was a director of both the company and its parent
company. At a time when the company was in financial difficulty and after D had
been instructed by an accountant not to use the company's bank account, D transferred
£ 4000 from the company's account to the parent company. This reduced a debt owed
by the company to the parent but the intention behind the payment was to reduce the
parent company's bank overdraft which D had personally guaranteed.
In these circumstances the Court of Appeal held that the payment amounted to
a fraudulent preference because D had acted in disregard of the interests of the general
creditors of the company, and in approving the statement of Street CJ in Kinsela v
Russell Kinsela Pty Ltd quoted above, held D to be in breach of his duty to the
company.
So instead of owing a duty directly to creditors, the position is that directors
have, in fulfilling their duties to the company in certain circumstances, most notably
where the company is insolvent, a duty to consider the interests of creditors. The
confirmation that a director does not owe duties to creditors as such was made in
Kuwait Asia Bank EC v. National Mutual Life Nominees Ltd 30 where in the judgment
of the Privy Council, it was stated that a director does not by reason only of his
position as director owe any duty to creditors of the company.
The Companies Act also establishes various activities as offences if carried
out by directors, managing agents, managers or other officers of the company during

27
Section 235 (1) of the Myanmar Company Act 1914
28
Section 237 Ibid
29
Section 236 and 238 Ibid
30
Kuwait Asia Bank EC v National Mutual Life Nominees Ltd 1991, 1 AC 187
10

or within the 12 months prior to the winding up of the company. 31 Such activities
include:
(i) Not disclosing to the liquidator all the property of the company and how, to
whom, for what consideration and when the company disposed of any part of
such, other than as disposed of in the ordinary course of the company's
business.
(ii) Not delivering up to the liquidator all books and papers in his/her custody or
under his/her control belonging to the company and which are required by law
to be delivered up.
(iii) Making any material omission in any statement relating to the affairs of the
company.
(iv) Failing to inform the liquidator of any false debt proved under the winding up
within a month of becoming aware of same.
(v) Concealing, destroying, mutilating or falsifying or being privy to the
concealment, destruction, mutilation or falsification of any book or paper
affecting or relating to the property or affairs of the company within the 12
months proceeding the winding up.
(vi) Obtaining by false representation or fraud any property for or on behalf of the
company on credit (which the company does not subsequently pay for) within
the 12 months proceeding the winding up.
(vii) Obtaining by false representation or fraud the consent of the creditors of the
company or any of them to an agreement with reference to the affairs or the
winding up of the company.
It is also important that directors and other company officers do not lose sight
of the additional responsibilities which they have towards the company arising from
their position as fiduciaries, which might give rise to further civil liability under the
general law.32
After the termination of a company, the important matters are considering the
above mentioned distribution of company's assets, payment and liabilities of directors
and officers. The preferences order shall be taken first to secured creditors and then
costs and expenses of the winding-up, preferential creditors, floating charge holders,
unsecured creditors and deferred debts. It can be ascertained that the preferences shall
not be a fraudulent. So, it is needed to control the act of liquidator by the creditors
through a committee which may be a liquidation committee.
So instead of owing a duty directly to creditors, the position is that directors
have, in fulfilling their duties to the company in certain circumstances, a duty, most
notably where the company is insolvent, to consider the interests of creditors. Further,
a director does not owe duties to creditors that a director does not by reason only of
his position as director owe any duty to creditors of the company.
Conclusion
To make a business, it is tradition to form a corporate entity since early days
of commerce. This type of corporation had made business all around the world by

31
Section 238 A of the Myanmar Company Act, 1914
32
Alec Christie & Suzanne Smith, Foreign Direct Investment in Myanmar, 1997, P. 281
 11

Royal Charters. It can be called company. When a company is formed by relevant

company law, it possesses a legal personality different from its members, directors
and all other staffs of company itself, although it conducts its business transactions
through them. It can be called “personhood” or “artificial person” of company. It can
be seen that, company is a legal person distinct from its owner of a company, its
members and share owners. A legal person is meant that it is recognized by law as
having legal rights and obligations. As a legal person, a company can own property
and make contracts through its managers or directors. It has got the right to sue and to
be sued in its own name and seal. Most companies are formed by registration under
the Companies Act 1914. When a company comes to an end, i.e., the existence of that
company terminates, it is proceeded a winding up proceeding. There are three ways
for winding up of a company, by the Court, voluntary winding up and supervision of
the Court. In voluntary winding up, it may be two kinds, by members or by creditors.
Whatsoever, an insolvent company it is need to appoint a liquidator who manages the
company assets and all other matters with respect to company. In philosophy, the
court can supervise and control all acts of liquidation in process of company winding
up. In Fact, it is not possible to control and monitor the acts of liquidator day by day.
It is needed to inset the provisions relating to liquidation committee to monitor the
every act of liquidator. These provisions in relation with the liquidation committee
can be made in Myanmar Companies Act or Myanmar Insolvency Act.

Acknowledgement

First I am thankful to my Professor Dr. Wah Wah Tun Department of Law,

University of Myitkyina for her invaluable advice, suggestions and kind support. I
would also like to thank Pro-Rector Dr. Daw Nu Nu Yi, University of Mandalay, for
his kind support and guidance on preparing and making this paper possible. I am most
grateful to Pro-Rector Dr. Aye Ko, Dr. Wah Wah Tun, Professor & Head of Law
Department, University of Myitkyina and all my colleagues for their kind support and
guidance on preparing and making this paper possible.

References;
Books
1. Alec Christie & Suzanne Smith, Foreign Direct Investment in Myanmar, 1997
2. Sealy, L. S, Cases and Materials in Company Law, 6th Edition, 1996
3. Simon Goulding, Principles of Company Law, 1996
4. Smith & Keenan's, Company Law for Students, 10th Edition, 1996

Laws
1. The Myanmar Companies Act, 1914
2. The Myanmar Insolvency Act 1986

Cases
1. U Than Aung V. Mr. Lim Chit Min, 2002 MLR 393
2. Kuwait Asia Bank EC v National Mutual Life Nominees Ltd 1991, 1 AC 187