Category: Insolvency

Balding, Regina (on the Application of) v Secretary of State for Work and Pensions: Admn 3 Apr 2007

The claimant sought judicial review of the respondent’s decision that he was liable, after his discharge from bankruptcy, to suffer deductions from his benefits of sums to repay an overpayment of benefit incurred before his bankruptcy.
Held: The respondent’s claim under section 71(1) was a bankruptcy debt, and as such was subject to release on the claimant’s discharge.

Judges:

Latham LJ, Davis J

Citations:

[2007] EWHC 759 (Admin), Times 01-May-2007, [2007] 4 All ER 422, [2007] BPIR 864, [2007] 1 WLR 1805

Links:

Bailii

Statutes:

Social Security Administration Act 1992 71(1), Insolvency Act 1986 382(4)

Jurisdiction:

England and Wales

Benefits, Insolvency

Updated: 19 November 2022; Ref: scu.250699

Banco de Portugal v Waddell: HL 1880

There was both an English and a foreign insolvency, the debtors having traded as wine merchants in England and in Portugal. They presented a petition for their adjudication in bankruptcy in England in December 1877. Insolvency proceedings were taken in Portugal after the English petition had already been presented. The Portuguese court took possession of the insolvents’ assets in Portugal, realised them and paid a dividend to the Portuguese creditors. These creditors then proved in the English bankruptcy.
Held: They were not allowed any dividend in the English bankruptcy until they had accounted for the dividend they had received in Portugal.
Cairns LC: ‘ . . the Appellants are perfectly entitled to prove under the English bankruptcy; but if they elect do so they must, as was said in the case of Selkrig v. Davis, bring into the common fund what they have received abroad.’
Lord Selborne noted that the ‘Portuguese assets were, by the Law of England, . . . subject to and bound by the English liquidation, except so far as the local law of Portugal might have intercepted any portion of them while within its jurisdiction’ and continued ‘Every creditor coming in to prove under, and to take the benefit of, the English liquidation, must do so on the terms of the English law of bankruptcy; he cannot be permitted to approbate and reprobate, to claim the benefit of that law, and at the same time insist on retaining, as against it, any preferential right inconsistent with the equality of distribution intended by that law, which he may have obtained either by the use of legal process in a foreign country, or otherwise. As against the Appellants . . . it is unimportant that the presentation of the petition in December 1877 was not per se a cessio bonorum; because . . the Act makes the title of the trustee relate back to the time when the petition was presented, which was before the time when the title of the Portuguese Court to administer the Portuguese assets is said to have accrued. The Appellants cannot come in and prove and take dividends out of the English assets, with the full benefit of the relation back of the title of the trustee to the date of the petition, and at the same time set up against that title a later act of a Portuguese Court, for the purpose of enabling themselves to refuse credit for property belonging to the estate, received by them in Portugal after the date of the petition, through the action of that Court. I must not, however, be supposed to think that it would really have made any difference if the action of the Portuguese Court had been earlier, nothing having been received by the Appellants till long after the title of the English trustee had accrued.’

Judges:

Cairns LC, Lord Selborne

Citations:

(1880) 5 App Cas 161

Jurisdiction:

England and Wales

Cited by:

Cited – Cleaver, Bodden v Delta American Reinsurance Company PC 1-Feb-2001
(Cayman Islands) In the course of trading the company had given security to carry on its insurance business. On its insolvency, the administrators required the creditor to bring into hotchpot credit received in a foreign jurisdiction. It was said . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 18 November 2022; Ref: scu.180691

Smith (a bankrupt) v Braintree District Council: HL 1989

The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Lord Jauncey of Tullichettle said that, in view of the changes in policy shown by the new Act, he felt justified in construing the provision of the Act of 1986 ‘as a piece of new legislation without regard to 19th century authorities or similar provisions of repealed Bankruptcy Acts.’

Judges:

Lord Jauncey of Tullichettle

Citations:

[1989] 3 All ER 897, [1989] 3 WLR 1317, [1990] 2 AC 215

Statutes:

Bankruptcy Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Harlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
Cited – Poulton v Ministry of Justice CA 22-Apr-2010
The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Cited – McRoberts v McRoberts ChD 1-Nov-2012
The parties had agreed to an ancillary relief order on their divorce. The husband was made bankrupt without having paid the lump sum agreed. The former wife and now claimant had received no dividend. Debts which were not provable in the bankruptcy . .
Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Rating

Updated: 18 November 2022; Ref: scu.181067

Van Overwaele v Hacking and Paterson for Recall of an Award of Sequestration: SCS 8 Aug 2001

Judges:

Lord Coulsfield and Lord Johnston and Lord Prosser

Citations:

[2001] ScotCS 201, [2001] ScotHC 80

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Van Overwaele v Hacking and Paterson and Another ScS 22-Apr-2004
. .
See Also – Russell v Van Overwaele SCSF 2-Mar-2005
‘The Sheriff Principal having resumed consideration of the cause Refuses the appeal and Adheres to the interlocutor of the sheriff dated 4 September 2003; Certifies the appeal as suitable for the employment of junior counsel; Finds the defender and . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 18 November 2022; Ref: scu.168937

Meliha Veli Mustafa v Direktor Na Fond’Garantirani etc: ECJ 18 Apr 2013

ECJ Protection of employees in the event of insolvency of their employer – Directive 80/987/EEC – Directive 2002/74/EC – Directive 2008/94/EC – Articles 2 and 3 – Obligation to provide a guarantee for employees’ claims – Possibility of limiting the guarantee to claims arising before the entry of the decision to open the insolvency proceedings in the register of companies – Decision to open the insolvency proceedings – Effects – Continuation of the employer’s activity)

Judges:

von Danwitz R

Citations:

C-247/12, [2013] EUECJ C-247/12

Links:

Bailii

Statutes:

Directive 80/987/EEC, Directive 2002/74/EC, Directive 2008/94/EC

European, Employment, Insolvency

Updated: 17 November 2022; Ref: scu.472724

Olympic Airlines Sa v ACG Acquisition XX Llc: CA 17 Apr 2013

The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later proved faulty.
Held: The appeal failed, though the result was upheld on different grounds. Aircraft necessarily or accepted and delivered without the full condition being known: ‘the parties know that neither can be absolutely certain of an aircraft’s condition at the point at which the lessee is called upon to accept delivery and the on-going risk. That commercial parties should in such a situation strive to achieve finality in relation to the allocation of risk and responsibility is a commonplace.’ Given the extensive access allowed before acceptance to survey the aircraft, the parties must have intended the condition certificate to be final.

Judges:

Rix, Tomlinson, Kitchin LJJ

Citations:

[2013] EWCA Civ 369

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Appeal from – ACG Acquisition Xx Llc v Olympic Airlines ComC 30-Apr-2012
The parties had contracted for the delivery and lease of a passenger airplane. It was delivered with defects, and the airline went into liquidation. The court was asked whether a claim for damages for defective delivery survives execution by the . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
See Also – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .

Cited by:

See Also – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Insolvency

Updated: 17 November 2022; Ref: scu.472636

Woodland-Ferrari v UCL Group Retirement Benefits Scheme: ChD 5 Jul 2002

The bankrupt had received his discharge from the bankruptcy and the debts associated. After the discharge he received a statutory demand from the trustees of a pension fund claiming sums from him alleging his dishonest breach of trust. He replied by saying that he had been discharged.
Held: To constitute a ‘fraudulent breach of trust’ under the Act, the behaviour had to have been deliberate and dishonest. An alternative view would have been against the spirit behind the 1986 legislation. The Financial Services Ombudsman had made a finding that he had been in ‘wilful default’ but that was not so equivalent a finding as to allow an estoppel as to whether he had acted fraudulently. The debt was in dispute, and the statutory demand was set aside.

Judges:

Mr Justice Ferris

Citations:

Times 17-Jul-2002

Statutes:

Insolvency Act 1986 281(1) 281(3)

Jurisdiction:

England and Wales

Insolvency, Estoppel

Updated: 14 November 2022; Ref: scu.174374

Trustees of Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa: CA 25 Feb 2013

Application for security for costs of appeal agaiinst winding up order.

Judges:

Kitchin LJ

Citations:

[2013] EWCA Civ 218

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Security for costs – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 14 November 2022; Ref: scu.472024

Ramlort Ltd v Michael James Meston Reid: CA 8 Jul 2004

The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the declaration of trust was ineffective as a transaction at an undervalue. The company appealed an order which returned to it the payments it had made, but that the balance was held for the insolvent estate. They said that at the time the payments were made, they were for full value.
Held: To have a transaction at an undervalue by an ‘individual’ within the sections, the value in money or money’s worth, from the debtor’s point of view, of the consideration for which he enters into the transaction must be ‘significantly less’ than the value in money or money’s worth, again from the debtor’s point of view, of the ‘consideration provided’ by the debtor. The value in money or money’s worth of the totality of whatever it is that the debtor is parting with under the transaction. There is no absolute need to ascribe exact values before making that judgment. There had been a transaction at an undervalue, and the order was correct.

Judges:

Lord Justice Jonathan Parker Lord Justice Judge Lord Justice Waller

Citations:

[2004] EWCA Civ 800, [2004] BPIR 985, [2005] 1 BCLC 331

Links:

Bailii

Statutes:

Insolvency Act 1986 339

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 2003
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Chohan v Saggar and Another CA 27-Dec-1993
The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that . .
Cited – Agricultural Mortgage Corporation Plc v Woodward and Another CA 30-May-1994
A tenancy granted by an insolvent farmer to his wife was set aside because of additional benefits which were granted. The tenancy was held to have been granted at an undervalue, even though the court was unable precisely to measure the value of the . .
Cited – Walker v WA Personnel Ltd 2002
The assets of group of companies were sold, and it then went into insolvent liquidation. The liquidator claimed that the sale was at an undervalue, and appliied to continue an interlocutory injunction.
Held: There was a triable issue as to . .

Cited by:

Full Hearing – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Wills and Probate, Trusts

Updated: 14 November 2022; Ref: scu.198603

AIB Finance Limited v Alsop and Another: CA 3 Mar 1998

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 Civ 380

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 14 November 2022; Ref: scu.143858

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 demand owed to the Bank for a sum greatly in excess of the statutory minimum which was not disputed on substantial grounds, being the petition debt less the net value of the cross claim put at its highest after equitable set-off of the Bank’s debt not the subject of the statutory demand. That sum was payable at the date of the petition and had not been paid or secured or compounded for, and the Judge was entitled to make a bankruptcy order on it.

Judges:

Lord Justice Peter Gibson, Lord Justice Otton, Sir John Balcombe

Citations:

Times 04-Mar-1998, Gazette 25-Mar-1998, [1998] EWCA Civ 241

Statutes:

Insolvency Act l986 264(l)(a) 267(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – TSB Bank plc v Platts (No 2 ) 1997
. .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – General Credits (Finance) Pty Ltd v Stoyakovich 1975
A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. . .
Cited – Standard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
Cited – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Re a Debtor (Nos 49 and 50 of 1992) 1995
The evidence disclosed a genuine triable issue as to whether there was a current liability to pay a sum equalling or exceeding andpound;750 and so a statutory demand had rightly been set aside. The judge had found that the debtor had a substantial . .
Cited – Samuel Keller (Holdings) Ltd v Martins Bank ChD 1970
On an interpleader summons by a bank, the question asked was whether the proceeds of sale held by the bank of properties mortgaged should be paid to the mortgagee or paid into court because the mortgagor had a cross-claim against the mortgagee.
Not followed – 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 . .
Cited – Re Humberstone Jersey Ltd CA 24-Jan-1977
A manufacturing company was supplied with machines on terms that they were to be installed within 30 days. The installation was not completed for another 6 months and the company claimed damages for breach of contract. The supplier served a . .
Doubted – Re a Company (No 003729 of 1982 ) ChD 1984
A creditor had claimed that the company owed it some andpound;12,000 for work done by the creditor for the company. The company refused to pay that sum but offered to pay some andpound;2,000. Two years later the creditor served a statutory demand . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 14 November 2022; Ref: scu.143719

Bydand Limited v Mark Feldman and Co (a Firm) Buckinghamshire County Council: CA 27 Jan 1998

Citations:

[1998] EWCA Civ 74

Jurisdiction:

England and Wales

Citing:

Appeal from – Bydand Ltd (In Liquidation) ChD 13-Mar-1997
The applicant sought to have rescinded a winding up order made on 22 January 1997 in respect of a company called Bydand Ltd in respect of liability orders made for arrears of council tax.
Held: The claim failed. Liability orders are orders of . .
Leave to Appeal – Bydand Ltd (In Liquidation); Todd v Chiltern District Council and Official Receiver CA 27-Jun-1997
. .
Lists of cited by and citing cases may be incomplete.

Rating, Insolvency

Updated: 13 November 2022; Ref: scu.143552

Raithatha v Williamson: ChD 4 Apr 2012

A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act.

Judges:

Bernard Livesey QC

Citations:

[2012] EWHC 909 (Ch), [2012] 1 WLR 3559, [2012] BPIR 621, [2012] WLR(D) 115, [2012] 3 All ER 1028

Links:

Bailii

Statutes:

Insolvency Act 1986 310

Jurisdiction:

England and Wales

Cited by:

Not followed – Horton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 November 2022; Ref: scu.470135

HM Revenue and Customs v GMAC UK Plc, BT Plc v HM Revenue and Customs: UTTC 3 Aug 2012

UTTC VAT Bad debt relief – Insolvency Condition, Property Condition – whether valid under EU law – No; whether repayment claim resulted in a windfall contrary to EU law – need for reference – Yes; Time limit for making claims – whether time-barred as a result of overriding provisions of EU law.

Citations:

[2012] UKUT 279 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

VAT, Insolvency, European

Updated: 12 November 2022; Ref: scu.466690

Olympic Airlines Sa v ACG Acquisition XX Llc: CA 17 Dec 2012

The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent

Judges:

Rix, Rimer LJJ

Citations:

[2012] EWCA Civ 1659

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .

Cited by:

See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .
See Also – Olympic Airlines Sa v ACG Acquisition Xx Llc CA 17-Jun-2014
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 November 2022; Ref: scu.467132

BT Plc v HM Revenue and Customs: UTTC 3 Aug 2012

UTTC VAT Bad debt relief – Insolvency Condition, Property Condition – whether valid under EU law – No; whether repayment claim resulted in a windfall contrary to EU law – need for reference – Yes; Time limit for making claims – whether time-barred as a result of overriding provisions of EU law.

Judges:

Warren J P, Hellier TJ

Citations:

[2012] UKUT 278 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

VAT, Insolvency, European

Updated: 10 November 2022; Ref: scu.466689

Islandsbanki Hf and Others v Stanford: CA 2 Apr 2020

This appeal raises two closely related questions of law: whether purported execution of a foreign judgment registered in the High Court pursuant to the terms of the Lugano Convention can be execution issued in respect of the judgment debt, for the purposes of section 268(1)(b) of the Insolvency Act 1986, if the execution occurred before the period for appealing the registration of the judgment has expired and, if not, whether the defect can be cured.

Judges:

Lady Justice Asplin

Citations:

[2020] EWCA Civ 480

Links:

Bailii

Statutes:

Insolvency Act 1986 268(1)

Jurisdiction:

England and Wales

Insolvency, International

Updated: 10 November 2022; Ref: scu.649503

Chan v Appasamy: 2008

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)

Jurisdiction:

England and Wales

Citing:

Cited – Budge v AH Budge (Contractors) Ltd CA 1997
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 . .

Cited by:

Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
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, . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 November 2022; Ref: scu.377227

Re Vocalion (Foreign) Ltd: 1932

The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action brought in a foreign to enforce a liability incurred abroad. But as against a respondent domiciled abroad, substantial justice is more likely to be attained by allowing the foreign proceedings to continue, and in such a case the Court will not as a rule exercise that jurisdiction.

Judges:

Maugham J

Citations:

[1932] 2 Ch 196

Statutes:

Companies Act 1929 177

Jurisdiction:

England and Wales

Cited by:

Cited – Harms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others CA 26-Jun-2009
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 November 2022; Ref: scu.375970

Tavoulareas v Lau and Another: CA 24 Apr 2007

The landlord leant paintings and photographs to its tenant restaurant. When the restaurant became insolvent, the claimant sought their return. The defendant said that they would be held pending release by the liquidators.

Citations:

[2007] EWCA Civ 474

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant, Insolvency

Updated: 09 November 2022; Ref: scu.253256

Trustee of Property of Vickery (a Bankrupt) v Modern Security Systems Limited: CA 15 Oct 1997

A trustee in bankruptcy will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution

Judges:

Peter Gibson LJ, Ward LJ, Vinelott LJ

Citations:

[1997] EWCA Civ 2493, [1998] 1 BCLC 428, [1998] BPIR 164

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Borneman v Wilson CA 1884
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction . .

Cited by:

Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 09 November 2022; Ref: scu.142891

Stein v Blake and others: CA 13 Oct 1997

The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason of the misappropriation of the business and assets of companies in which he was a shareholder. Leave to appeal was set aside, though such applications would normally be discouraged. There may be special circumstances in which a fiduciary duty is owed by a director to a shareholder personally and in which breach of such a duty has caused loss to him directly (e.g. by being induced by a director to part with his shares in the company at an undervalue), as distinct from loss sustained by him by a diminution in the value of his shares (e.g. by reason of the misappropriation by a director of the company’s assets), for which he (as distinct from the company) would not have a cause of action against the director personally.
Millett LJ said: ‘If this action were allowed to proceed and the plaintiff were to recover for the lost value of his shareholding from the first defendant, this would reduce his ability to meet any judgment which might thereafter be obtained by the liquidators, or by any of the old companies which were not in liquidation, to the prejudice of their creditors. The plaintiff would have obtained by a judgment of the court the very same extraction of value from the old companies at the expense of their creditors that the first defendant is alleged to have obtained by fraud and deceit.’

Judges:

Lord Woolf MR, Millett LJ, Mummery LJ

Citations:

[1997] EWCA Civ 2474, [1998] 1 All ER 724, [1997] EWCA Civ 4002, [1998] 1 BCLC 573, [1998] BCC 316

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Heron International v Lord Grade, Associated Communications Corp. Plc. and Others CA 1983
In the course of a contested take-over bid, the directors of the target company who owned a majority of the company’s voting shares were alleged, in breach of their duties both to the company and to its shareholders, to have accepted proposals which . .
Cited – Smith v Cosworth Casting Processes Limited CA 26-Feb-1997
A right of appeal is not dependant upon an assessment of the chances of success on appeal. An appeal against the grant of leave to appeal should not anticipate the full appeal. There is a heavy onus on a respondent who seeks to set aside leave to . .
See Also – Stein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .
See Also – Stein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .
See Also – Stein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
See Also – Stein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .

Cited by:

Cited – Bruce Peskin; Kevin Milner v John Anderson and Others CA 14-Dec-2000
The Royal Automobile Club (RAC) had been demutualised. The claimants were former members who sought damages from former directors because they had received no benefit. They had ceased to be members before the re-organisation and claimed they should . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
See Also – Stein v Blake ChD 31-Oct-2000
When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice, Insolvency, Torts – Other

Updated: 09 November 2022; Ref: scu.142872

Legal Services Commission v Leonard: CA 1 May 2002

The claimant appealed against an insolvency order made against him after being ordered to pay the costs of a legally aided party in a court action.

Judges:

Simon Brown LJ VP, Laws, Arden LLJ

Citations:

[2002] EWCA Civ 744, [2002] BPIR 994

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989

Jurisdiction:

England and Wales

Insolvency

Updated: 06 November 2022; Ref: scu.465881

McRoberts v McRoberts: ChD 1 Nov 2012

The parties had agreed to an ancillary relief order on their divorce. The husband was made bankrupt without having paid the lump sum agreed. The former wife and now claimant had received no dividend. Debts which were not provable in the bankruptcy are not released: they are untouched by the process. The former husband now sought an order discharging the debt on his own discharge.
Held: The order was refused, and the obligation remained in place.
Hildyard J said of the discretion given to the court: ‘the purpose of the discretion is to enable the Court, in order better to achieve the objectives of discharging a bankrupt, to release an obligation if persuaded that the likelihood of its being satisfied is not such that its continuance is likely to have be of any benefit to the obligee, and that, conversely, its release is necessary in order to assist the obligor in building a viable financial future. ‘ The attempt to recharacterise the payment of a lumps sum by instalments as maintenance failed because: ‘(a) I am not persuaded that the relevant obligation should be re-characterised as in substance an order for maintenance payments (b) I am not persuaded it would be open to review in matrimonial proceedings and (c) in any event, I do not consider that the discretion conferred by section 381(5) of the IA was intended to extend to such a review.’
Evidence did not support the feeling that the claimant had ‘ done everything he can to discharge his obligations to his ex-wife; they do encourage a sense that the Applicant’s finances may not be entirely transparent. By contrast, they do encourage a feeling, since these fairly substantial sums were being provided to him whilst the obligation to pay subsisted, that if (as he maintains he will) he demonstrates the allegations against him to be false he may well be able to generate funds or means of support in the future which may be enough both for his and his family needs and also to begin to enable him to reduce the lump sum outstanding. ‘

Judges:

Hildyard J

Citations:

[2012] EWHC 2966 (Ch), [2012] WLR (D) 305

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 281(5), Matrimonial Causes Act 1973 23(3)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Smith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Cited – Woodley v Woodley (2) CA 12-Apr-1993
A stay of execution of an order against matrimonial assets was not defeated by bankruptcy. As to the interplay of the Insolvency Rules and matrimonial proceedings.
Balcombe LJ said: ‘I cannot leave this case without saying something about the . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 06 November 2022; Ref: scu.465631

Heis and Others (Administrators of MF Global UK Ltd) v MF Global Inc: ChD 1 Nov 2012

An investment bank administrator who had been appointed under the 2011 Regulation was strictly analagous to a liquidator being appointed.

Judges:

David RichardsJ

Citations:

[2012] EWHC 3068 (Ch), [2012] WLR(D) 304, [2013] 1 WLR 903, [2013] 1 BCLC 552

Links:

Bailii, WLRD

Statutes:

Investment Bank Special Administration Regulations 2011

Jurisdiction:

England and Wales

Banking, Insolvency

Updated: 06 November 2022; Ref: scu.465530

Bydand Ltd (In Liquidation); Todd v Chiltern District Council and Official Receiver: CA 27 Jun 1997

Citations:

[1997] EWCA Civ 1984

Statutes:

Council Tax (Administration and Enforcement) Regulations 1992 49

Jurisdiction:

England and Wales

Citing:

Appeal from – Bydand Ltd (In Liquidation) ChD 13-Mar-1997
The applicant sought to have rescinded a winding up order made on 22 January 1997 in respect of a company called Bydand Ltd in respect of liability orders made for arrears of council tax.
Held: The claim failed. Liability orders are orders of . .

Cited by:

Leave to Appeal – Bydand Limited v Mark Feldman and Co (a Firm) Buckinghamshire County Council CA 27-Jan-1998
. .
Lists of cited by and citing cases may be incomplete.

Rating, Insolvency

Updated: 06 November 2022; Ref: scu.142381

Britannia Bulk Plc v Pioneer Navigation Ltd and Another: ComC 25 Mar 2011

‘This judgment relates to a dispute as to the correct construction of the 1992 Master Agreement of the International Swap Dealers Association, now the International Swaps and Derivatives Association (‘ISDA’) which concerns the financial consequences of Automatic Early Termination of a series of forward freight agreements (‘FFAs’) between the parties following the insolvency of the claimant Britannia Bulk.’

Judges:

Flaux J

Citations:

[2011] EWHC 692 (Comm), [2011] 2 Lloyds Rep 84, [2011] 1 CLC 864

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Insolvency

Updated: 05 November 2022; Ref: scu.430857

13-20 Embankment Gardens Ltd v Coote: CA 24 Jan 1997

The applicant appealed an order for the removal of a land charge. As tenant of a flat, he had fallen into dispute with the management company. Proceedings were under way for the lease to be forfeited, and in the meantime his lender obtained a possession order. He intended to claim damages for failure to repair, and he registered a land charge to protect that impending action. The landlord was now in liquidation.
Held: The use of the land charge was wholly inappropriate. The landlord being in liquidation, no charging order would now be possible. He was an unsecured creditor and this claim must proceed by way of proof in the liquidation. The charging order procedure is not available to a party who has not yet established his claim. Leave to appeal was refused.

Judges:

Lord Justice Mccowan, Lord Justice Millett

Citations:

[1997] EWCA Civ 835

Statutes:

Land Charges Act 1972

Jurisdiction:

England and Wales

Landlord and Tenant, Land, Insolvency

Updated: 05 November 2022; Ref: scu.141231

Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft: CA 28 Jan 1997

An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the requesting state. The court identified three categories of assistance an English court might make available to a foreign court requesting assistance in insolvency proceedings: a) its own general and inherent powers; b) English insolvency law, and c) so much of the relevant foreign law as was applicable in b). It remained the decision of the English court as to whether relief was to be granted.

Judges:

Morritt LJ, Roch LJ, Thorpe LJ

Citations:

Times 06-Mar-1997, [1997] EWCA Civ 857, [1997] 1 BCLC 497

Statutes:

Insolvency Act 1986 426

Jurisdiction:

England and Wales

Citing:

Approved – Re Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .

Cited by:

Cited – Fourie v Le Roux and Others ChD 30-Sep-2004
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were . .
Cited – Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt PC 11-Jan-2005
PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier . .
Cited – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 05 November 2022; Ref: scu.141253

Cartwright and Another v The Registrar of Companies: CA 24 Aug 2012

The court was asked whether an administrator of a company may convert the administration into a creditors’ voluntary liquidation simply by giving notice to the registrar of companies, or whether, as the registrar contends, that conversion occurs only once the registrar has registered the conversion notice on the company’s file at Companies House.

Judges:

Lord Neuberger MR, Arden, Moses LJJ

Citations:

[2012] EWCA Civ 1159

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 04 November 2022; Ref: scu.463722

Relfo Ltd v Varsani: ChD 27 Jul 2012

Claim brought by the Liquidator of the claimant company for recovery of monies belonging to the company which the Liquidator says were diverted by the former director and controller of the company, Mr Gorecia to the account of the Defendant, at Citibank Singapore Limited

Judges:

Sales J

Citations:

[2012] EWHC 2168 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 November 2022; Ref: scu.463301

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: As a true appeal, he had to show some error of law. That had not been shown, and leave was refused.

Citations:

[1997] EWCA Civ 763

Jurisdiction:

England and Wales

Citing:

Cited – 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’ . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 November 2022; Ref: scu.141159