The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. Charges under the 1986 Act were unusual in that they were not preceded by a court action, and no immediate right of enforcement arose in favour of the trustee. ‘The Trustee’s rights against No. 22 under the 1992 Charge were, of course, created in consequence of the bankruptcy but I see them as being rights ‘unaffected’ by the bankruptcy just as are other rights of secured creditors. The rights under the charge subsist even after the bankruptcy has ended and could subsist even after the Trustee had ceased to be the chargee or the Bankrupt the chargor. Moreover, the rights are directed against the Bankrupt’s interest in No. 22, which is property taken out of the estate and vested not in the Trustee but in the Bankrupt himself. The rights are ‘outside the bankruptcy’ or ‘outside the statutory trust’ in the sense that it is not the statutory trust that the Trustee invokes against No. 22 but his rights as chargee. These considerations suggest to me that the Trustee’s rights as chargee should be vulnerable to limitation . . .’
Judges:
Lindsay J
Citations:
Times 25-Nov-2005, [2005] EWHC 2576 (Ch), [2006] 1 WLR 729
Links:
Statutes:
Limitation Act 1980 20(1), Insolvency Act 1986 313
Jurisdiction:
England and Wales
Citing:
Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Cited – In re General Rolling Stock Co; Joint Stock Discount Company’s Claim CA 21-Jun-1872
Upon a winding up: ‘A duty and a trust are thus imposed upon the Court, to take care that the assets of the company shall be applied in discharge of its liabilities. What liabilities? All the liabilities of the company existing at the time when the . .
Cited – In re Benzon CA 1914
Limitation applies where a claim is not against a bankrupt’s estate or is not a claim ‘in the bankruptcy’. . .
Cited – Cottrell v Price 1960
The rights of a secured creditor against his security were held to be rights ‘outside the bankruptcy’. As to the case of Benzon: ‘The importance of that case and of the way in which the doctrine is stated in the judgment of the Court is that it . .
Cited – Anglo-Manx Group Ltd v Aitken 2002
The court discussed the case of Cottrell v Price: ‘There was considerable argument before me as to what is meant by the words ‘in the bankruptcy’ as distinct from the words ‘outside the bankruptcy’. Mr Adair submitted that the question can be . .
Cited by:
Appeal from – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.
Insolvency
Updated: 23 March 2022; Ref: scu.235028