The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius and left IOM. The creditor said that new home was only a holiday home, and that therefore the domicile of origin revived. The judge had criticised the debtor’s veracity.
Held: The debtor had not established acquisition of a domicile of choice in Mauritius, and his domicile of origin was revived on leaving IOM. The bankruptcy court therefore had jurisdiction. The acid test on domicile was as to where the debtor’s ‘real residence’ was and ‘The judge wrongly asked himself whether Mr Henwood intended to reside permanently in Mauritius but failed to ask whether Mauritius was Mr Henwood’s chief residence. The judge made no finding as to where Mr Henwood’s chief residence was.’
Any test of chief residence is circular: ‘It cannot simply be a reference to the main home in terms of size or amenities. Nor can it be a reference to the home in which the subject spends the most time. The court has to look at the quality of the residence in order to decide in which country the subject has an intention to reside permanently. Provided that task is carried out, the chief residence in the sense that term is used in this context has in fact been identified.’
The untruths told by the debtor were attempts to direct the court to a finding that his domicile was in Mauritius: ‘The lies were therefore relevant to evaluation of the evidence as to his intention as to permanent or indefinite residence. The lies diminish the likelihood of that intention in reality because if that intention really existed there would be no need to lie in what must have been a premeditated way and on this scale.’
The court considered when it was able to review a finding of fact. In this case the judge had failed properly to reflect the importance of some facts, and the appeal court felt able to examine the facts again.
Waller LJ VP, Arden LJ, Moore-Bick LJ
[2008] EWCA Civ 577, Times 18-Jun-2008, [2008] BPIR 778
Bailii
Insolvency Act 1986 265
England and Wales
Citing:
Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Bell v Kennedy 1868
A domicile of choice in a country is been acquired immediately upon the person’s arrival in that country.
Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term ‘domicile’, . .
Cited – Wahl v Wahl 1932
A person’s citizenship does not necessarily determine his domicile. . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Buswell v Inland Revenue Commissioners CA 1974
. .
Mentioned – Re Clore (deceased) (No. 2) 1984
. .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Whicker v Hume HL 1858
Lord Cranworth said: ‘in these days, when the tendency of the educated and leisured classes is to become cosmopolitan – if I may use the word – you must look very narrowly into the nature of the residence suggested as a domicil of choice before you . .
Cited – Winans v Attorney-General HL 1904
A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – Inland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .
Cited – Inland Revenue Commissioners v Plummer HL 1-Nov-1979
Although transactions were integrated as part of a preconceived scheme which was commercially marketed and that had no other conceivable purpose than that of saving surtax, the construction of the statute compelled the acceptance of a fiscal result . .
Cited – Plummer v Inland Revenue Commissioners ChD 1987
The taxpayer had a domicile of origin in England but her family had moved to Guernsey. She remained in England principally for the purpose of completing her education. She intended when she had finished her training and had some experience working . .
Cited – Inland Revenue Commissioners v Duchess of Portland 1982
The taxpayer had homes in Quebec and in England. The court was asked to decide which was her principle residence, and in particular whether she had acquired a domicile of choice on an annual visit in 1974.
Held: Residence for the in the law of . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – Urquhart v Butterfield 1887
A court may find a result different from that proposed by either party where there is no admission on the issue. . .
Cited – Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo ChD 9-Feb-2004
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Family
Updated: 01 November 2021; Ref: scu.267998