The test for the exercise of the discretion to set aside a statutory demand is whether there are circumstances which would make it unjust for the statutory demand to give rise to insolvency consequences in the particular case. Judges: HHJ Weeks QC Citations: [2008] 1 BCLC 314, [2005] EWHC 3519 Statutes: Insolvency Rules 1986 6.5(4)(a) … Continue reading Chan v Appasamy: 2008
Citations: [2006] EWHC 1954 (Ch) Links: Bailii Statutes: Solicitors Act 1974, Insolvency Rules 1986 6.5 Jurisdiction: England and Wales Legal Professions, Insolvency Updated: 11 September 2022; Ref: scu.243987
The debtor had agreed to buy a company from the petitioner, the price to be payable in instalments by means of post-dated cheques. The debtor alleged misrepresentation and stopped one of the cheques. The petitioner served a statutory demand based on the dishonoured cheque. The district judge dismissed the debtor’s application to set aside the … Continue reading Hofer v Strawson: ChD 31 Mar 1999
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, and should provide similar relief to a guarantor. Held: (Mummery … Continue reading Remblance v Octagon Assets Ltd: CA 17 Jun 2009
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why the demand ought to be set aside.’Peter Gibson LJ said: ‘The … Continue reading Budge v AH Budge (Contractors) Ltd: CA 1997
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented. Held: The auctioneer had specifically warned off bidders who had not inspected the site. However the paperwork was clearly capable … Continue reading Ahmed v Landstone Leisure Ltd: ChD 30 Jan 2009
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form. Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of … Continue reading In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland: CA 1989
Whether the appellants appeared to have a counterclaim against AIB which equals or exceeds the amount of the debt specified in the statutory demands. That is a ground on which a court may grant an application to set aside a statutory demand: rule 6.5(4)(a) Insolvency Rules 1986. Citations: [1998] 2 All ER 929, [1998] EWCA … Continue reading AIB Finance Limited v Alsop and Another: CA 3 Mar 1998
Ordinarily the court would avoid two actions on similar facts where inconsistent decisions might be reached, but where issues on setting aside a statutory demand were genuinely separate, the separate actions could continue. Citations: Times 01-Jul-1998 Statutes: Insolvency Rules 1986 (1986 No 1925) 6.5.4(d) Jurisdiction: England and Wales Insolvency Updated: 24 July 2022; Ref: scu.81672
The claimant appealed refusal to set aside a statutory demand served by the defendant. The parties had become embroiled in criminal proceedings and the defendant sought recovery of assets from the claimant. In those proceedings a costs order had been made and that was the basis of the statutory demand. The claimant said that his … Continue reading Popely v Popely: ChD 25 Jul 2003
The claimant appealed refusal to set aside a statutory demand made by the respondent society. The proposed defence had been already been dismissed by the courts. Held: Such a consideration was very relevant, but not necessarily determinative. The debtor was obliged to proceed quickly, and could not delay his application. He had to demonstrate a … Continue reading Thomas-Everard and Others v Society of Lloyd’s: ChD 18 Jul 2003
The expression ‘cross-demand’ in rule 6.5(4)(a) did not imply any kind of procedural or juridical relationship to the debt subject to the statutory demand. All it meant was that the demand was one that went the other way, i.e. was a demand by the debtor on the creditor. The cross-claim must still be one which … Continue reading Popely v Popely: CA 30 Apr 2004