Category: Insolvency

Macdonald’s Trustee v Macdonald: 1938

So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override

Citations:

1938 SC 536

Statutes:

Police Pensions Act 1921 14(1), Bankruptcy (Scotland) Act 1913 98(2)

Cited by:

Cited – Mulvey v Secretary of State for Social Security HL 20-Mar-1997
The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 29 April 2022; Ref: scu.184747

Fraser v Robertson: 1881

A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor personally, and that a creditor can enforce against the debtor an obligation incurred after sequestration.

Citations:

(1881) 8 R 347

Cited by:

Cited – Mulvey v Secretary of State for Social Security HL 20-Mar-1997
The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland

Updated: 29 April 2022; Ref: scu.184746

In re Russian Bank for Foreign Trade: 1933

Soviet legislation involved an extinguishment of the rights and obligations of the commercial banks and the creation of equivalent obligations on the part of a new State Bank.

Citations:

[1933] Ch 745

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 29 April 2022; Ref: scu.183829

Re Gorman: ChD 1990

The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife sought credit for the mortgage interest payments in an equitable accounting on the sale of the home.
Held: She could only have such credit against a set-off in favour of the trustee in bankruptcy for an occupation rent. If an account is taken, the party paying the instalments should not be entitled to set a due proportion of the whole of the instalments paid against the share of the other party. The mortgagee will normally have a charge on the property for principal and interest and a right to possession and sale to enforce his charge. The payment of instalments due under the mortgage operates to relieve the property from the charge and gives rise to an equitable right of contribution by the co-owner who has not paid his due proportion of the instalments.

Judges:

Vinelott J and Sir Mervyn Davies

Citations:

[1990] 1 WLR 616, [1990] 2 FLR 284

Jurisdiction:

England and Wales

Citing:

Cited – Leigh v Dickeson 1884
The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an . .
Cited – Suttill v Graham CA 1977
The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which . .

Cited by:

Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Insolvency

Updated: 29 April 2022; Ref: scu.183860

In re Donald Kenyon Ltd: 1956

The company contributories petitioned for the restoration of the company so that they could get in a sum of money standing to the credit of the company’s account at a building society.
Held: Fairness required that the restoration should be on terms that time should not run during the period of dissolution against creditors whose claims were not statute-barred at the date of dissolution whose claims were not statute-barred at that date: ‘…. what I have to do is put all other persons – not only the company, but all other persons – in the same position as nearly as may be as if the name of the company had not been struck off. At the date of the dissolution, the creditors …. who were not statute-barred at the date of dissolution …. could have stopped the statute running by issuing, possibly serving, a writ. [Counsel for the petitioner] contends that the creditor could also have applied to restore the name of the company to the register and then have issued his writ. Of course he could, but that is not the same position, nor is it, in my judgment, the nearest that can be done to get to the ‘as-youwere position’; and it seems to me that, when a company has been dissolved and therefore nobody can sue it without getting it restored to the register, it is only common fairness that, if the contributories for purposes of their own, want to get it restored to the register years afterwards, the period [of dissolution] should be disregarded for the purposes of the Statute of Limitations. …. Common justice requires that some such provision should be inserted.’

Judges:

Roxburgh J

Citations:

[1956] 1 WLR 1397

Cited by:

Cited – Whitbread (Hotels) Ltd and Another v Walkmore (95) Ltd OHCS 4-Jan-2002
Where application was made to restore a company to the register, to face court action, the court should look at the issues of limitation, and at how any delays had arisen.
Held: The court should be aware of the potential prejudice created by . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 29 April 2022; Ref: scu.183436

In Re Gilmartin (A Bankrupt): 1989

A petitioning creditor is: ‘entitled to be paid his debt in full on the hearing of a petition unless it is adjourned on the ground that there is a reasonable prospect of him being paid within a reasonable time’

Judges:

Harman J

Citations:

[1989] 1 WLR 513

Jurisdiction:

England and Wales

Cited by:

Cited – The Commissioners for Customs And Excise v Katz CA 10-Jan-1997
Mr Katz sought to appeal a bankruptcy order made at the request of the commissioners, following non-payment of VAT. He claimed that insufficient allowance had been made for money which would be payable to him, and his medical condition.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 April 2022; Ref: scu.183330

Kaneria, Kaneria v Patel, Kaneria, Kaneria, Kaneria, Kaneria, Guidezone Ltd Sub Nom In The Matter Of Guidezone Ltd (2000): 13 Jul 2000

cw The petitioners’ case was that they had a legitimate expectation that the company’s business would be sold, either by virtue of an agreement to that effect or at their request, was not made out on the facts.

Judges:

Jonathan Parker J

Citations:

(2000) 2 BCLC 321

Cited by:

Approved – Anderson v Hogg IHCS 14-Dec-2001
The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 29 April 2022; Ref: scu.183215

Morris v Secretary of State for Employment: EAT 1985

The claimant’s employer had become insolvent, and the claimant sought his unpaid salary amounting to andpound;290. The respondent applied the statutory limit of andpound;140.00, and then deducted tax and NI.
Held: M’s appeal failed. The statutory limit applied to the gross amount to be paid. The calculation was correct.

Citations:

[1985] ICR 522

Statutes:

Employment Protection (Consolidation) Act 1978 122(5)

Jurisdiction:

England and Wales

Insolvency, Employment

Updated: 29 April 2022; Ref: scu.183061

Independent Automatic Sales Ltd v Knowles and Foster: ChD 1962

The company in liquidation had sold machines on hire-purchase. It sued the finance company to recover hire-purchase agreements and other securities which it had charged to secure the repayment of advances. When the finance company relied upon the charge, the plaintiff replied that it was void because it should have been registered as a charge over book debts.
Held: If the property subject to a charge is not registered and the property remains after all the costs of the winding up and debts payable in the liquidation have been paid the property will continue to be encumbered even though the charge was not registered at Companies House. A book debt is one which could be properly entered in the books of the company whether in fact entered or not.

Judges:

Buckley J

Citations:

[1962] 1 WLR 974, [1962] 3 All ER 27

Jurisdiction:

England and Wales

Cited by:

Cited – Smith (Administrator of Cosslett (Contractors) Limited) v Bridgend County Borough Council; In re Cosslett (Contractors) Ltd HL 8-Nov-2001
The standard building contract allowed a contractor to take plant and equipment from a site and sell it in payment of sums due under the contract, upon the other contractor becoming insolvent. It was said that this power amounted to a charge over . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 28 April 2022; Ref: scu.180667

Platts v Western Trust and Savings Ltd: CA 9 Jun 1993

The court examined the extent of the Judge’s discretion on hearing an application to set aside a statutory demand. When property was valued for the purposes of a statutory demand, it should be as on a forced sale. A ‘forced sale’ was taken as one requiring completion within four months. The judge, in dealing with the application to set aside the statutory demand, had refused to allow cross-examination of conflicting valuation evidence in order to establish the value of the security. The Appeal Court was asked if that had been his last opportunity to chalenge the valuation.
Held: rr 7.51 and 7.57 of the 1986 Rules would give the court which heard the petition power to determine the value of the security on proper evidence from both sides, in a case where the debtor satisfied it that there were substantial grounds for thinking that the petitioning creditor might be fully secured.

Judges:

Sir Christopher Slade

Citations:

Gazette 09-Jun-1993, [1996] BPIR 339

Statutes:

Insolvency Act 1986 267 268

Jurisdiction:

England and Wales

Cited by:

Applied – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 April 2022; Ref: scu.84768

Menzies v National Bank of Kuwait Sak: CA 13 Dec 1993

It must only in exceptional circumstances that a company other than company in liquidation may be alloweed to pursue a debt for the company.

Citations:

Ind Summary 13-Dec-1993, [1994] 2 BCLC 306

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 April 2022; Ref: scu.83634

In Re A Debtor (No 32 of 1993): ChD 1 Mar 1994

A voluntary arrangement can be offered where only one creditor may stay bankruptcy proceedings. Rejection of less than the full amount by a petitioning creditor was not necessarily unreasonable.

Judges:

Mr Timothy Lloyd QC

Citations:

Times 01-Mar-1994, Gazette 11-May-1994, [1994] 1WLR 899

Statutes:

Insolvency Act 1986 271(3)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Papanicola v Humphrys and Others ChD 14-Mar-2005
The bankrupt had continued to run his restaurant for a year, by having another company collect his receipts for him. The trustee had obtained a declaration that the sum was held in trust for the bankrupt’s estate. The director of the company who had . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 April 2022; Ref: scu.81656

Roberts Petroleum Ltd v Bernard Kenny Ltd: HL 2 Jan 1983

The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave the plaintiff an unfair advantage in the winding up. The defendant appealed against the re-instatement of the charging order absolute.
Held: The defendant’s appeal succeeded. A charging order nisi is precarious until it is made absolute; and there is a discretion whether or not to make it absolute when the matter comes back before the court. As to the exercise of that discretion.
a) The burden of showing cause why an interim order shall not be made final is on the judgment debtor; and
b) In exercising its discretion, the court must take into account all the relevant circumstances whether they arose before or after the interim order.
Lord Brightman said that the court should assist the judgment creditor to recover the debt due to it, and ‘A judgment creditor is in general entitled to enforce a money judgment which he has lawfully obtained against a judgment debtor by all or any of the means of execution prescribed by the relevant rules of court.’ As to the steps available for the regulation of the enforceent of money claims, he said: ‘Neither step not counterstep casts any discredit on those involved . . A person who has the misfortune to have given credit to a company which runs into financial difficulties has every right to seek to secure himself. And such company or its other creditors have every right to hasten liquidation in order to thwart such a purpose’.

Judges:

Lord Brightman

Citations:

[1983] 2 AC 192, [1983] 1 All ER 564, [1983] BCLC 28, [1983] 2 WLR 305

Statutes:

Administration of Justice Act

Jurisdiction:

England and Wales

Citing:

Appeal from – Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) CA 1982
The plaintiffs had supplied petrol to the defendant who owned two filling stations. The defendant prepared a statement of affairs ready to hold a meeting of creditors. The plaintiffs took their claim to judgement and obtained a charging order nisi . .
Not approved – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .

Cited by:

Applied – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .
Cited – In re Buckingham International Plc and In the Matter of Insolvency Act 1986; Mitchell v Buckingham International Plc CA 16-Feb-1998
. .
Cited – Ropaigealach v Allied Irish Bank Plc CA 12-Nov-2001
. .
Cited – Westacre Investments Inc v The State-Owned Company Yugoimport SDPR ComC 21-Apr-2008
. .
Cited – Kier Regional Ltd (T/A Wallis) v City and General (Holborn) Ltd and others TCC 17-Oct-2008
kier_cityTCC2008
The claimant sought to make final an interim third party debt order. The defendants sought a stay of the enforcement. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 28 April 2022; Ref: scu.181249

Bombay Official Assignee v Shroff: PC 1932

The bankrupt had been a member of the Bombay stock exchange. His share had been forfeit. The trustee claimed the share. The official assignee contended that his members card or the value thereof vested in him as the assignee in the insolvency, because among other reasons, ‘if the effect of the rules be that the proceeds of sale of the insolvent’s card do not enure for the benefit of the general body of his creditors the rules are contrary to the law of insolvency.’
Held: The nature of the constitution of the association as regulated by the deed of association and its rules in the case of a defaulting member who was expelled from the Association, no interest in his card was retained and there was nothing to pass to the assignee.
Lord Blanesburgh said: ‘It being agreed . . that the rules of this association are entirely innocent of any design to evade the law of insolvency, it may be that even these cases, although cases of a company and a partnership, are more favourable to the [association] than to the [official assignee] . . [T]he real answer to this contention of the [official assignee] [is] in the nature and character of the association as they have described it whereby in the case of a defaulting member who is expelled from the association no interest in his card remains in himself, and none can pass to his assignee, whether his expulsion does or does not take place before the commencement of his insolvency.’

Judges:

Lord Blanesburgh

Citations:

(1932) 48 TLR 443 PC

Jurisdiction:

England and Wales

Cited by:

Cited – Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd and Another ChD 10-Jul-2001
MMI were members of the London Stock Exchange, and accordingly held one share in that non-profit making institution. The share was valueless. Anticipating losing their membership and so the share, and also the demutualisation, the share was to be . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency, Company

Updated: 28 April 2022; Ref: scu.180973

Great Eastern Railway Co v Lord’s Trustee: HL 14 Dec 1908

A railway company contracted by ‘ledger agreement’ with a coal merchant to allow credit for the carriage of coal. Certain allotments of space within the premises of the railway company were leased by it to the coal merchant. The ledger agreement provided that the railway company should have a continual lien for the balance of freight over the coal in course of being carried and also over coal stored upon the allotments. The allotments were situated within the company’s yard, which was regularly locked by the company at night. The coal merchant’s account being in arrear, the company locked the gates leading to the allotments and held possession of coal stored there, excluding the coal merchant.
Held ( diss. Lords Robertson and Collins) that the railway company were in possession of the coal in the allotments and that they had a valid lien.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, Robertson, Atkinson, and Collins

Citations:

[1908] UKHL 1024, 46 SLR 1024

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant, Insolvency

Updated: 26 April 2022; Ref: scu.621529

Bank of Scotland v Liquidators of Hutchison Main and Co Ltd: HL 6 Feb 1914

The solicitors of a limited liability company wrote to a bank-‘We further write to say that we are authorised by the directors, and our London correspondents have our instructions, forthwith to procure from Mr Johnson a debenture or floating charge over the whole of his assets in name of this company for the amount required to secure the debt due by Mr Johnson to our clients. So soon as that debenture reaches our hands we have instructions to make it available to the Bank of Scotland as further and additional security for the repayment by our clients of their indebtedness to the bank, and it is understood in respect of the arrangements made that the bank will give to those interested in the company the benefit of the arrangements referred to in past correspondence.’ Correspondence followed as to whether an assignation or a mortgage should be given to the bank, but though the debenture in favour of the company was granted, nothing more was done before the company went into liquidation.
Held that the bank had no preferential claim on the debenture.

Judges:

Earl of Halsbury, Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1914] UKHL 229 – 1, 51 SLR 229 – 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency, Banking

Updated: 26 April 2022; Ref: scu.620706

Angel Group Ltd v Davey: ChD 12 Jul 2018

Claim by liquidators for several liquidated companies against their former director for compensation for breach of trust or breach of fiduciary duty. It was said that she had diverted various assets to her own use.

Judges:

Fancourt J

Citations:

[2018] EWHC 1781 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 25 April 2022; Ref: scu.619889

Wiemer and Trachte: ECJ 28 Jun 2018

(Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Article 3 (1) – International jurisdiction – Article 21 – Advertising measures – Article 24 – No initiation of the procedure of insolvency – Execution for the benefit of the debtor – Presumption of ignorance – Revocatory action

Citations:

C-296/17, [2018] EUECJ C-296/17 – O, ECLI:EU:C:2018:515

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 24 April 2022; Ref: scu.619034

Wild Duck Ltd v Smith and Others: CA 27 Jun 2018

The court was asked whether the owners and landlords of a site known as Waters Edge prevented performance of an obligation by a Management Company to undertake and complete works on common parts of the site, an obligation which (it is said) came into effect on the liquidation and disappearance of the original developer.

Citations:

[2018] EWCA Civ 1471

Links:

Bailii

Jurisdiction:

England and Wales

Land, Insolvency

Updated: 24 April 2022; Ref: scu.618931

Wessely and Another (Liquidators of Laishley Ltd) v White: ChD 14 Jun 2018

Claim made by application notice by the liquidators of Laishley Limited the respondent, managing director for equitable compensation in respect of alleged breaches of fiduciary duty in executing two deeds of release on behalf of the company in relation to building contracts.

Citations:

[2018] EWHC 1499 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 24 April 2022; Ref: scu.618829

Singularis Holdings Ltd v Pricewaterhousecoopers: PC 10 Nov 2014

(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers.

Judges:

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins

Citations:

[2014] UKPC 36, [2015] 1 AC 1675, [2015] BCC 66, [2014] WLR(D) 476, [2015] 2 WLR 971, [2014] 2 BCLC 597

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Pricewaterhousecoopers v Saad Investments Company Ltd PC 10-Nov-2014
(Bermuda) The Board was asked as to the interpretation of Bermudan statutes, and whether the the respondents’ auditors had standing to challenge the winding up order in answer to an appliation by the liquidators. . .

Cited by:

Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 April 2022; Ref: scu.538671

JSC BTA Bank v Ablyazov and Another: CA 22 May 2018

‘The main question on this appeal is whether the trial judge made an error of law in rejecting a claim that a payment of money made by the first defendant as a gift to his son (the second defendant) was made for the purpose of putting assets beyond the reach of the claimant and was therefore liable to be set aside under section 423 of the Insolvency Act 1986. A second question raised by a respondent’s notice is whether the judge should have rejected the claim in any event on the ground that it is time-barred.’

Citations:

[2018] EWCA Civ 1176

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 22 April 2022; Ref: scu.616327

Re Hirth: CA 1899

The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated bankrupt and the trustee elected to impeach the transfer of the business as a fraudulent conveyance, and an act of bankruptcy. A question of priorities then arose between the trustee in bankruptcy and the creditors of the company who had dealt with it in good faith and without notice of the act of bankruptcy.
Held: In rejecting the creditors’ claim to priority: ‘That would be all very well if the title of the trustee could be treated as accruing when he gave notice to impeach the transaction; it would be all very well as against everybody except the trustee in bankruptcy, whose title relates back. That doctrine is peculiar to bankruptcy; and it is because the trustee says, ‘This property, the moment I elect to avoid, and do avoid, is mine from an anterior date under the special provisions of Section 43 of the 1883 Act, ‘that he overrides all the transactions and dealings which have been relied on as an answer to his claim’

Judges:

Sir Nathaniel Lindley MR

Citations:

[1899] 1 QB 612

Statutes:

Bankruptcy Act 1883 43

Jurisdiction:

England and Wales

Cited by:

Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 April 2022; Ref: scu.186757

In re Abbott: ChD 1983

W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or its implementation was void under section 42 which protected only a settlement made to a purchaser in good faith and for valuable consideration. The court dismissed the application saying the wife was such a purchaser. The trustee appealed.
Held: The appeal was dismissed. The court accepted the submission of the wife’s counsel that the compromise of a bona fide claim for ancillary relief can constitute the claimant a purchaser for valuable consideration of what he receives under the compromise, even though no interest in property is transferred by the purchaser and the consideration provided by the purchaser is not measurable in money. The Vice-Chancellor agreed.

Judges:

Peter Gibson J

Citations:

[1983] 1 Ch 45

Statutes:

Bankruptcy Act 1914 42(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Harman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
Cited – Re Kumar (A Bankrupt), ex parte Lewis v Kumar 1993
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Insolvency, Land

Updated: 20 April 2022; Ref: scu.261928

Sargent v Commissioners of Customs and Excise: ChD 18 Nov 1993

VAT in rents received by receiver was payable to customs. The receiver is a VAT taxable person even if he is appointed under a floating charge.

Citations:

Times 18-Nov-1993, Gazette 02-Mar-1994

Jurisdiction:

England and Wales

Cited by:

Appeal from – Sargent v Commissioners of Customs and Excise CA 23-Feb-1995
Property company receiver liable to pay VAT collected on rents to Commissioners. . .
Lists of cited by and citing cases may be incomplete.

VAT, Landlord and Tenant, Insolvency

Updated: 20 April 2022; Ref: scu.89009

Whitlie v James Gibb and Son: SCS 14 Jan 1898

A bankrupt, who had himself petitioned for sequestration, and made oath to a state of affairs showing that he was insolvent, brought an action of reduction of the sequestration against the concurring creditor and the trustee, on the ground that he had been induced by the fraud of his concurring creditor to apply for sequestration in the belief that he was insolvent, when in point of fact he was not. He also averred that the trustee had acted in collusion with this creditor in the conduct of the sequestration. The court dismissed the action.
Observed that a bankrupt’s remedy when he avers that there has been any irregularity in the conduct of the trustee in the course of the sequestration is to apply to the Accountant of Court, whose duty it will be to inquire into the complaint.

Judges:

Lord Low, Ordinary

Citations:

[1898] SLR 35 – 355

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 April 2022; Ref: scu.612163

Baberton Development Syndicate, Ltd, Petitioners: SCS 23 Feb 1898

Court of Session Inner House First Division – It is competent for the Court in pronouncing an order for the winding up of a company having its registered office in Scotland, to appoint a liquidator residing outwith its jurisdiction, but it is not the general practice to make such an appointment unless valid reasons can be shown for doing so.
Application for appointment of liquidator residing outwith jurisdiction refused.

Citations:

[1898] SLR 35 – 499

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 April 2022; Ref: scu.612164

In re Southern Pacific Personal Loans Ltd: ChD 8 Aug 2013

This application raises issues concerning the relationship between the Data Protection Act 1998 and the winding-up of insolvent companies and the duties of liquidators.
Held: The Joint Liquidators of a company did not take on the duties of a data controller as regards data held by the company before entering into liquidation

Judges:

David Richards J

Citations:

[2013] EWHC 2485 (Ch), [2013] WLR(D) 336

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986, Data Protection Act 1998 1

Jurisdiction:

England and Wales

Insolvency, Information

Updated: 15 April 2022; Ref: scu.514981

Heis and Others v Attestor Value Master Fund Lp and Another: ChD 16 Aug 2013

‘This application raises issues concerning the relationship between the rules governing the distribution of client money to clients as beneficiaries of the trust and the rules governing the proof and payment of debts due to clients as creditors. Specifically, the issues concern, first, the extent to which a distribution of client money reduces the amount for which a client may prove or the amount which a client may be paid as a creditor and, secondly, whether a claim in respect of a shortfall in the client money trust is a provable debt and, if so, the principles governing its amount. ‘

Judges:

David Richards J

Citations:

[2013] EWHC 2556 (Ch), [2013] WLR(D) 339

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Insolvency

Updated: 15 April 2022; Ref: scu.514980

Equal Exchange Trading Limited, Note of and The Provisional/Interim Liquidator of for Interim Approval of Accounts of Intermissions: SCS 11 Apr 2018

The noter having prepared accounts of her intromissions presented a note seeking that the accounts should be audited and a payment in respect of her remuneration fixed for her period of appointment as provisional liquidator and the period of her appointment as interim liquidator.

Citations:

[2018] ScotCS CSOH – 35

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 14 April 2022; Ref: scu.609365

Milne, Liquidator of Premier Housewares (Scotland) Llp v Rashid: SCS 14 Mar 2018

The noter sought an order under section 214A of the 1986 Act for recovery of sums withdrawn by the respondent from the LLP in the two year period before the granting of the winding up order.

Citations:

[2018] ScotCS CSOH – 23

Links:

Bailii

Statutes:

Insolvency
Act 1986 214A

Jurisdiction:

Scotland

Insolvency

Updated: 14 April 2022; Ref: scu.609351

Randhawa and Another v Turpin and Another: CA 1 Aug 2017

The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators

Judges:

Sir Geoffrey Vos, Underhill, Henderson LJJ

Citations:

[2017] EWCA Civ 1201, [2017] WLR(D) 544, [2018] 2 WLR 1175, [2018] Ch 511, [2017] BCC 406

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .
At ChD – Randhawa and Others v Turpin and Another ChD 22-Jul-2016
. .
Cited – Re New Cedos Engineering Company Ltd 1994
The company had two directors. On a death the inheritor of a members shares were entitled to have their shares registered. The majority shareholder died. The remaining board refused to register his widow as owner of the shares. She remarried, and . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 13 April 2022; Ref: scu.591692

Randhawa and Others v Turpin and Another: ChD 22 Jul 2016

Judges:

Purle QC HHJ

Citations:

[2016] EWHC 2156 (Ch), [2016] BCC 814, [2017] 1 BCLC 240

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .

Cited by:

At ChD – Randhawa and Another v Turpin and Another CA 1-Aug-2017
The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 April 2022; Ref: scu.569647

Randhawa and Another v Turpin and Another: ChD 2 Mar 2015

Challenge to company administrators’ fees.

Judges:

David Cooke HHJ

Citations:

[2015] EWHC 517 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

See Also – Randhawa and Others v Turpin and Another ChD 22-Jul-2016
. .
See Also – Randhawa and Another v Turpin and Another CA 1-Aug-2017
The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.543957

The Official Receiver v Negus: ChD 16 Dec 2011

The court was asked: is it a sufficient ground for refusing to make an income payments order under section 310 of the Insolvency Act 1986 in respect of a bankrupt that sums received under any order will not (or are unlikely to) enable a distribution to be made to the bankrupt’s unsecured creditors?

Judges:

Newey J

Citations:

[2011] EWHC 3719 (Ch), [2012] BPIR 382, [2012] 1 WLR 1598

Links:

Bailii

Statutes:

Insolvency Act 1986 310

Jurisdiction:

England and Wales

Insolvency

Updated: 12 April 2022; Ref: scu.515340

The Governor And Company of Undertakers For Raising Thames Water In York Buildings v Alexander Mackenzie, Writer, To The Signet: PC 15 May 1795

Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant.

Citations:

[1795] EngR 4112, (1795) 8 Bro PC 42, (1795) 3 ER 432

Jurisdiction:

Scotland

Citing:

At Court of Session – York Buildings Co v Mackenzie SCS 8-Mar-1793
Purchase by Common Agent at Auction Voidable
The defendant was the ‘common agent’ for the sale of the assets of an insolvent partnership and purchased some of the assets at a judicial auction.
Held: The purchase was voidable, even though it was made at a sale by auction.
Who bears . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 12 April 2022; Ref: scu.356457

Cotton v James, Gent One and C: 17 Jan 1829

In trespass for entering plaintiff’s dwelling-house and taking his goods on a plea justifying the trespass by proceedings under a commission of bankruptcy, and replication taking issue on the act of bankruptcy, the defendant is entitled to begn. Letters, bearing postmarks before the act of bankruptcy, and found in the alleged bankrupt’s possession after it, containing statements of maters material to the act of bankruptcy, are admissible without calling the writer, as evidence against the alleged bankrupt, to shew that he received iintimation of these facts, though not to prove their truth A fraudulent delivery of goods is not an act of bankruptcy, unless it be in the nature of a gift or transfer, so that when goods are removed with intent to delay a creditor, but the party to whose custody they are given has no claim given to him over them, this is not an act of bankruptcy At all events such delivery of goods by his agent, carrying on his business, without his direction, is no act of bankruptcy.

Citations:

[1829] EngR 293, (1829) M and M 273, (1829) 173 ER 1157

Links:

Commonlii

Cited by:

See Also – Cotton v James, Gent One, and C 18-Jan-1829
. .
See Also – Cotton v James 30-Jun-1830
The burden of proof can shift during the course of a trial. Silence in circumstances in which a party would be expected to answer might convert evidence into proof. . .
See Also – James, Gent, One and Co v Cotton 1831
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.322161

Cotton v James, Gent One, and C: 18 Jan 1829

Citations:

[1829] EngR 296, (1829) 3 Car and P 505, (1829) 172 ER 522

Links:

Commonlii

Citing:

See Also – Cotton v James, Gent One and C 17-Jan-1829
In trespass for entering plaintiff’s dwelling-house and taking his goods on a plea justifying the trespass by proceedings under a commission of bankruptcy, and replication taking issue on the act of bankruptcy, the defendant is entitled to begn. . .

Cited by:

See Also – Cotton v James 30-Jun-1830
The burden of proof can shift during the course of a trial. Silence in circumstances in which a party would be expected to answer might convert evidence into proof. . .
See Also – James, Gent, One and Co v Cotton 1831
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.322164

Kitchen v Bartsch: 22 Nov 1805

It is a good plea to an action on a promissory note and for money lent, that the plaintiff is an uncertificated bankrupt, and that his assignees required the defendant to pay to them the money claimed by the plaintiff: and it is no good replication that the causes of action accrued after the plaintiff became bankrupt, and that the defendant treated with the plaintiff as a person capable of receiving credit in those behalves, and that the commissioners had made no new assignment of the said notes and money : for the general assignment of the commissioners passes to the assignees of the bankrupt all his after-acquired as well as present personal property and debts.

Citations:

[1805] EngR 345, (1805) 7 East 53, (1805) 103 ER 21

Links:

Commonlii

Insolvency

Updated: 12 April 2022; Ref: scu.343418

James, Gent, One and Co v Cotton: 1831

Citations:

[1831] EngR 127, (1831) 7 Bing 266, (1831) 131 ER 103

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Cotton v James, Gent One and C 17-Jan-1829
In trespass for entering plaintiff’s dwelling-house and taking his goods on a plea justifying the trespass by proceedings under a commission of bankruptcy, and replication taking issue on the act of bankruptcy, the defendant is entitled to begn. . .
See Also – Cotton v James, Gent One, and C 18-Jan-1829
. .
See Also – Cotton v James 30-Jun-1830
The burden of proof can shift during the course of a trial. Silence in circumstances in which a party would be expected to answer might convert evidence into proof. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.320005

Ahmed v Landstone Leisure Ltd: ChD 30 Jan 2009

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 of being read to suggest that the entire plot was being sold, and not the unmarked sub-plot intended. There was a serious arguable point, and the statutory demand was to be set aside.

Citations:

[2009] EWHC 125 (Ch), [2009] BPIR 227

Links:

Bailii

Statutes:

Insolvency Rules 1986 6.54(a)

Jurisdiction:

England and Wales

Citing:

Cited – Workington Harbour and Dock Board v Towerfield (Owners) (‘The Towerfield’) HL 1951
The occasions upon which the master is called upon to exercise his reserve of authority either by interfering with the conduct of the ship or by taking the navigation out of the hands of a competent pilot are rare and should the master exercise that . .
Cited – Lomax Leisure Ltd v Miller and Another ChD 12-Oct-2007
. .
Cited – Post Office v Hampshire County Council 1980
Leading counsel for the appellants argued unsuccessfully that a pre-1875 edition of Bullen and Leake’s Precedents of Pleadings had referred to an equitable doctrine of circuity in certain classes of cases, but that nothing had been heard of it for a . .
Cited – E A Grimstead and Son Limited v McGarrigan CA 13-Oct-1998
. .
Cited – Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
Cited – Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.280254

Edwards v Regina: CExc 1854

The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court’s judgment added that even if the transfer to the assignee, by virtue of his appointment, was also a judicial act, and should therefore be taken, equally with the execution, to date from the beginning of the day so that the two acts were concurrent, nevertheless ‘it has never been disputed . . but that the Crown in such case has priority over the subject.’

Judges:

Coleridge J

Citations:

(1854) 9 Ex.628

Jurisdiction:

England and Wales

Cited by:

Applied – Wright v Mills 1859
A judgment was signed when the Court’s offices opened at 11 am but the defendant had died at 9.30 the same morning. The Court held that the judgment was regular, applying the rule that judicial acts, being acts of the Crown, have precedence over . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 12 April 2022; Ref: scu.267518

Bacal Contracting Ltd v Modern Engineering (Bristol) Ltd: 1980

Costs were sought against the receivers as from the commencement of the winding up of the plaintiff, and were granted on the basis that if the claim had been continued by the liquidator the applicant would have been a secured creditor.

Citations:

[1980] 2 All ER 655

Jurisdiction:

England and Wales

Cited by:

Cited – Dolphin Quays Developments Ltd v Mills and others CA 17-May-2007
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from . .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 12 April 2022; Ref: scu.252412

Waters v Widdows: 1984

Citations:

[1984] VR 503

Jurisdiction:

England and Wales

Cited by:

Followed – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.195883

Re the Brighton Club: QBD 1865

A petitioner served a statutory demand for more than andpound;4,000 on the company but the company bona fide disputed the amount due.
Held: The petition would be dismissed even though more than andpound;50 (the statutory minimum) was due from the company. However, ‘Far from being insolvent, this company is carrying on a thriving business, which I am asked to stop, merely because there is a quarrel between the company and the contractor as to what is due to him.’

Judges:

Sir John Romilly M.R

Citations:

(1865) 35 Beav 204

Jurisdiction:

England and Wales

Cited by:

Not followed – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.184798

In re Pantmaenog Timber Co Ltd: CA 25 Jul 2001

The Official Receiver could not use the powers given to him for the purposes of his insolvency duties to require production of documents form solicitors and accountants, to satisfy duties placed on him by the Secretary of State for the purpose of company director disqualification proceedings. The secretary of state could not ask the Official Receiver to carry out steps for that purpose by exercising powers given to the receiver for other purposes.

Judges:

Chadwick LJ, Kennedy LJ

Citations:

Times 08-Aug-2001, Gazette 13-Sep-2001, [2002] Ch 239

Statutes:

Company Directors Disqualification Act 1986 7(4) 7(1)(b), Insolvency Act 1986 235 236

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Pantmaenog Timber Company Ltd ChD 15-Dec-2000
The duties of the Official Receiver in company director disqualification proceedings were related to the gathering of information regarding the trading of a company. The powers given to the receiver did not include the power to commence proceedings, . .

Cited by:

Appeal from – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 April 2022; Ref: scu.136168

Fletcher v Vooght: BC 28 Feb 2000

The debtor and creditors had entered into a individual voluntary arrangement, but the meeting had not been sanctiond by the prior authorisation of the court as required. Despite its continuance for three years, and the parties having acted upon it, the supervisor decided that the appointment had been void. On appeal to the court it was held that the procedure was intended to protect the debtor, and that without the statutory interim order authorising the meeting the appointment must be void, and could not receive retrospective approval.

Citations:

Gazette 23-Mar-2000

Statutes:

Insolvency Act 1986 253 256 257

Insolvency

Updated: 11 April 2022; Ref: scu.135963

Gaardsoe v Optimal Wealth Management: ChD 28 Feb 2012

The claimant sought leave to bring proceedings for professional negligence. As a footballer he had been injured, ending his career. He said that the defendant had been engaged, inter alia, to arrange insurance, but that they had failed to do so. The defendant company was in administration.

Judges:

John Martin QC

Citations:

[2012] EWHC 3266 (Ch), [2013] BPIR 59, [2013] BCC 53, [2013] 2 WLR 550, [2013] Ch 298

Links:

Bailii

Statutes:

Insolvency Act 1986, Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Insolvency

Updated: 11 April 2022; Ref: scu.472520

In re Gerald Cooper Chemicals Ltd: ChD 1978

A business might be found to have been conducted in such a way as to defraud creditors even though only one act of defrauding had been found and one creditor defrauded.

Citations:

[1978] Ch 262

Jurisdiction:

England and Wales

Cited by:

Cited – Morphitis v Bernasconi and others CA 5-Mar-2003
The appellants had been directors of a company which fell into difficulties. A new company was begun, and traded, and the other continued for a year before being wound up by a landlord. The lease was disclaimed. Only the landlord lost out. He . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 11 April 2022; Ref: scu.180039