Category: Insolvency

Atkinson And Another, Assignees Of Porter, A Bankrupt, v Brindall: 5 Nov 1835

In an action by assignees of a bankrupt to recover money paid by way of fraudulent preference, and in contemplation of bankruptcy, it must be shewn that the party paying contemplated an actual bankruptcy; it is not sufficient to shew that he knew himself to be in a state of insolvency
[1835] EngR 940, (1835) 2 Bing NC 225, (1835) 132 ER 88
Commonlii
England and Wales

Updated: 26 July 2021; Ref: scu.316448

Countrywide Banking Corporation Limited v Brian Norman Dean As Liquidator of C B Sizzlers Limited: PC 24 Nov 1997

(New Zealand) The issue was whether a transaction by a company should be set aside, following its liquidation, on the basis that it was a preference within the New Zealand Companies Act 1955. The applicant applied to the High Court of New Zealand for an order that the transaction should not be set aside on the ground that it had taken place in the ordinary course of business.
Held: The Board declined to formulate a universally applicable test for what was in the ordinary course of business for the purposes of a provision of the New Zealand Companies Act concerned with the avoidance of corporate transactions having a preferential effect, stressing the diversity of contexts in which the courts had given consideration to that expression. Gault J nevertheless stressed the need for ‘examination of the actual transaction in its factual setting’, an examination which is ‘undertaken objectively by reference to the standard of the ordinary course of business’. The judgment also noted that ‘there may be circumstances where a transaction, exceptional to a particular trader, will nonetheless be in the ordinary course of business’ and that ‘[t]he particular circumstances will require assessment in each case’
Gault J
[1997] UKPC 57, [1998] BCC 105, [1998] AC 338, [1998] 2 WLR 441, [1998] BPIR 676, [1998] 1 BCLC 306
Bailii
England and Wales

Updated: 25 July 2021; Ref: scu.159269

Tailby v Official Receiver: HL 1888

A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader may assign his future book debts in a specified business. Why should the line be drawn there? Between men of full age and competent understanding ought there to be any limit to the freedom of contract but that imposed by positive law or dictated by considerations of morality or public policy? The limit proposed is purely arbitrary, and I think meaningless and unreasonable.’ Future property, possibilities, and expectancies are all assignable in equity for value.
Lord MacNaghten
(1888) 13 App Cas 523
England and Wales
Cited by:
Cited – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – In re Ellenborough, Towry Law v Burne ChD 1903
The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is . .
Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.191956

In re Mumtaz Properties Ltd; Wetton v Ahmed: CA 24 May 2011

Former directors appealed against finding as to their personal liability for directors’ and other loans.
Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.
There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.’
Arden, Aikens, Patten LJJ
[2011] EWCA Civ 610
Bailii
England and Wales
Citing:
Cited – Onassis and Calogeropoulos v Vergottis HL 1968
Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. . .

Cited by:
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Cited – Hijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.440119

In Re Moss: 2 Jun 1866

Lord Romilly MR said: ‘I think it of great importance to preserve the lien of solicitors. That is the real security for solicitors engaged in business. It is also beneficial to the suitors. It would frequently happen, but for the lien which solicitors have upon papers and deeds, that a client who is not able to advance money to enable them to carry on business would be deprived of justice, through inability to prosecute his claims in the suit.’
Lord Romilly MR
[1866] EngR 160 (B), (1866) 35 Beav 526
Commonlii
England and Wales
Cited by:
Cited – Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd SC 18-Apr-2018
The court was asked as to use of the solicitor’s equitable lien, whereby equity provided security for the recovery by solicitors of their agreed charges for the successful conduct of litigation, out of the fruits of that litigation. It is a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 July 2021; Ref: scu.280871

Cottrell v Price: 1960

The rights of a secured creditor against his security were held to be rights ‘outside the bankruptcy’. As to the case of Benzon: ‘The importance of that case and of the way in which the doctrine is stated in the judgment of the Court is that it makes it clear that it is only ‘in the bankruptcy’ that the statute ceases to operate. It does not have any effect on the operation of the statute on any rights or remedies which are unaffected by the bankruptcy.’
Buckley J
[1960] 1 WLR 1097
England and Wales
Citing:
Approved – In re Benzon CA 1914
Limitation applies where a claim is not against a bankrupt’s estate or is not a claim ‘in the bankruptcy’. . .

Cited by:
Cited – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Anglo-Manx Group Ltd v Aitken 2002
The court discussed the case of Cottrell v Price: ‘There was considerable argument before me as to what is meant by the words ‘in the bankruptcy’ as distinct from the words ‘outside the bankruptcy’. Mr Adair submitted that the question can be . .

These lists may be incomplete.
Updated: 18 July 2021; Ref: scu.235332

Ex Parte Bryant: 12 Aug 1815

Person arrested on his return from proving a debt at Guildhall, discharged with costs of application.
Though an order be made on a petition in bankruptcy, directing costs to be paid to the Petitioner personally, this does not take away the lien of the solicitor for his costs.
Vice Chancellor Plumer said: ‘I do not wish to relax the doctrine as to lien, for it is to the advantage of clients, as well as solicitors; for business is often transacted by solicitors for needy clients, merely on the prospect of having their costs under the doctrine as to lien.’
The Vice Chancellor also said, obiter, that knowledge of the solicitor’s lien on the part of the payer would be as effective as notice.
Plumer VC
[1815] EngR 982, (1815) 1 Madd 49, (1815) 56 ER 19
Commonlii
England and Wales
Cited by:
Cited – Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd SC 18-Apr-2018
The court was asked as to use of the solicitor’s equitable lien, whereby equity provided security for the recovery by solicitors of their agreed charges for the successful conduct of litigation, out of the fruits of that litigation. It is a . .

These lists may be incomplete.
Updated: 18 July 2021; Ref: scu.336792

Trident International Limited v Barlow; Hughes and Goodman (the Joint Administrators of Hamley Plc and Jeffrey (Rogers) Imports Limited: CA 30 Jul 1999

A contractual possessory lien, coupled with a right to sell and use the proceeds to discharge the customer’s outstanding indebtedness was not a floating charge because the company did not purport to have any right to exercise any right to take possession as distinct from the right to detain possession
Henry LJ, Mummery LJ, Chadwick LJ
[1999] EWCA Civ 2061, [2000] BCC 602
Bailii
Insolvency Act 1986 11(3)(c), Companies Act 1985 395
England and Wales
Citing:
Appeal from – Trident International Limited v Barlow ChD 27-Feb-1998
. .
Cited – Great Eastern Railway Company v Lord’s Trustee HL 1909
The House was asked whether the appellant railway company had delivered the goods unconditionally to the goods owner so as to lose its lien for the price of coal carriage, or was there an agreement conferring ‘a right in equity to any personal . .

Cited by:
Cited – Online Catering Ltd v Acton and Another CA 10-Feb-2010
online_actonCA10
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.146976

Euromex Ventures Ltd and Another v BNP Paribas Real Estate Advisory and Property Management UK Ltd and Others: ChD 9 Oct 2013

Administrators and then liquidators of a company based at television studios in Hayes, Middlesex were accused of dealing with assets in the Studio in such a way as to convert them. The assets in question mainly, but not entirely, comprised television and studio equipment. The total value of the items that are said to have been converted is put at about pounds 14 million in the Particulars of Claim.
Newey J
[2013] EWHC 3007 (Ch)
Bailii
England and Wales

Updated: 13 July 2021; Ref: scu.516329

Tiger and Others (Judicial Cooperation In Civil Matters – Insolvency Proceedings – Judgment): ECJ 4 Dec 2019

Reference for a preliminary ruling – Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Article 3(1) – Actions which derive directly from insolvency proceedings and which are closely connected with such proceedings – Sale of immovable property and creation of a mortgage – Action brought by the trustee in bankruptcy seeking a declaration that the transactions concerned are ineffective – Article 25(1) – Exclusive jurisdiction of the courts of the Member State in which the insolvency proceedings were opened
[2020] ILPr 3, [2020] CEC 868, ECLI:EU:C:2019:1046, [2019] WLR(D) 660, [2020] 1 WLR 2955, [2020] 2 All ER (Comm) 444, [2019] EUECJ C-493/18
WLRD, Bailii
European

Updated: 13 July 2021; Ref: scu.665527

AWH Fund Ltd v ZCM Asset Holding Company (Bermuda) Ltd: PC 29 Jul 2019

(Bahamas) The Board was asked whether there is a jurisdictional gateway available for the service out of the jurisdiction of the claims of the liquidator of the respondent in these proceedings and, if so, whether the claims satisfy the merits threshold for an order by the court for such service.
Lord Reed, Lord Carnwath, Lord Briggs, Lady Arden, Lord Sales
[2019] UKPC 37
Bailii
England and Wales

Updated: 12 July 2021; Ref: scu.645930

Re Swissair: Chd 6 Aug 2009

The main company had been liquidated in Switzerland, The liquidators of the assets in the UK sought directions as to the payment of the proceeds of the liquidation in view of the fact that many creditors here had sought payment in Switzerland.
David Richards J
[2009] EWHC 2099 (Ch), [2009] BPIR 1505
Bailii
Insolvency Act 1986
England and Wales

Updated: 08 July 2021; Ref: scu.372692

In re Blights Builders Ltd: ChD 2 Oct 2006

An out of court appointment of joint administrators of the company, a one-man building company, had been made by the principal shareholder’s executors at a time when, unknown to them, a creditor’s petition for the winding up of the company had already been presented. By paragraph 25 of Schedule B1, an administrator may not be appointed under paragraph 22 if a petition for the winding up of the company has been presented and not disposed of.
Held: The petition was ‘presented’ when it was delivered to the court, and not when it was later sealed and issued.
Nor could the position be regularised using rule 7.55: ‘ I do not consider that an appointment by the company or by the directors under paragraph 22 is an ‘insolvency proceeding’ for the purpose of the rule. As was pointed out by Sir Donald Nicholls V.-C. in Re A Debtor (No.88 of 1991), [1992] 4 All ER 301, [1993] Ch 286, a distinction has to be drawn between legal proceedings as such and the doing of acts which are part of the statutorily prescribed procedure for obtaining relief. An out-of-court appointment is part of the statutory procedure that is necessary to obtain the remedies and reliefs afforded by Schedule B1 but does not of itself initiate legal proceedings. Legal proceedings are initiated when the administrator makes an application under paragraph 63 of Schedule B1 or otherwise, but until then he is an officer of the court appointed out of court and subject to obligations to report to the court.
Secondly, I accept the submission that failure to satisfy the statutory criteria for the exercise of the power to appoint represents a fundamental flaw which cannot be remedied under a regularisation provision, a principle enunciated in Re Awan [2000] BPIR, 241.
Thirdly, I accept that it is difficult to see how an invalid appointment could occasion an ‘injustice’, and if that invalidating does occasion an injustice how that is ‘remedied’ by an order retrospectively validating the appointment.
So I do not consider that rule 7.55 provides an answer.’
Norris QC J
[2006] EWHC 3549 (Ch), [2008] 1 BCLC 245, [2007] BCC 712, [2007] 3 All ER 776, [2007] 3 All ER 776
Bailii
Insolvency Rules 1986 7.55
England and Wales
Cited by:
Cited – In re Frontsouth (Witham) Ltd and Another ChD 30-Jun-2011
The court was asked to make a retrospective appointment of a company administrator.
Held: Henderson J (in a reserved judgement) said that he shared Morgan J’s misgivings, but like him regarded the jurisdiction as a useful one and was prepared . .
Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .

These lists may be incomplete.
Updated: 08 July 2021; Ref: scu.341776

Bell v Birchall and Others: ChD 4 Jun 2015

Application by the Applicant in his capacity as Trustee in Bankruptcy of the first respondent for an order that the time costs and expenses of the Trustee said to have been incurred in (a) preserving the files and records of Birchall Ryan (a solicitor’s practice carried on by the first respondent as sole principal at the date he was made bankrupt) (b) reconciling the client accounts of the Practice together with incidental connected costs and (c) the costs of these proceedings should be deducted pro rata from the client accounts of the Practice.
Held: The application was refused.
Pelling QC HHJ
[2015] EWHC 1541 (Ch), [2016] 4 All ER 766, [2015] BPIR 751, [2017] 1 WLR 667
Bailii
England and Wales

Updated: 03 July 2021; Ref: scu.547575

Matthew and Others v Sedman and Others: SC 21 May 2021

The Respondents were trustees of a trust which could make a claim under a scheme of arrangement. They failed to make a claim on or before the bar date under the scheme of arrangement, which was midnight on Thursday 2 June 2011. The Appellants issued a claim form on Monday 5 June 2017 seeking a remedy from he Respondents for their failure to make the claim. In response, the Respondents argued that the Appellants’ claim was brought after the expiry of the relevant limitation periods.
Lord Hodge, Deputy President, Lady Arden, Lord Sales, Lord Burrows, Lord Stephens
[2021] UKSC 19, [2021] 2 WLR 1232
Bailii, Bailii Press Summary, Bailii Issues and Facts
England and Wales

Updated: 01 July 2021; Ref: scu.663387

Hunt and Another v Conwy County Borough Council: ChD 8 May 2013

The claimant bankrupt and his mother sought a vesting order under the 1986 Act in respect of the pier at Colwyn Bay and its associated dwelling which had been disclaimed by the trustee as onerous property.
Held: The court had power to hear an application under the section for the vesting a dwelling in its occupants even though that he might occupy only a part of the disclaimed property as his dwelling house and on such an application, it could make an order relating to only a part of the disclaimed property.
Sir William Blackburne
[2013] EWHC 1154 (Ch), [2014] 1 WLR 254, [2013] WLR(D) 205, [2013] BPIR 790
Bailii, WLRD
Insolvency Act 1986 320(2)(a)
England and Wales

Updated: 29 June 2021; Ref: scu.503477

Morris and others v Rayners Enterprises Incorporated and Another: HL 30 Oct 1997

A deposit at a bank which had been given in charge to the bank to secure the liabilities of a third party was not a mutual arrangement, and therefore there no statutory set off applied, and the funds could be reclaimed.
Lord Goff of Chieveley, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton
Gazette 01-Apr-1998, Times 13-Nov-1997, [1997] UKHL 44, [1998] Lloyd’s Rep 48, [1998] 1 AC 214, [1998] 1 BCLC 68, [1997] BCC 965, [1998] BPIR 211, [1997] 4 All ER 568, [1997] 3 WLR 909
House of Lords, Bailii
Insolvency Rules 1986 (1986 No 1925)
England and Wales

Updated: 24 June 2021; Ref: scu.158919

Re Yagerphone Ltd: 1935

A sum recovered from a creditor who has been wrongly preferred enures for the benefit of the general body of creditors, not for the benefit of the company or the holder of the floating charge. It does not become part of the company’s assets but is received by the liquidator impressed with a trust in favour of those creditors amongst whom he has to distribute the assets of the company.
[1935] Ch 392
England and Wales

Updated: 21 June 2021; Ref: scu.196015

Re DTEK Energy BV: ChD 8 Jun 2021

Applications by DTEK Energy BV and by DTEK Finance PLC seeking the grant of sanction for their respective inter-conditional schemes of arrangement
Sir Alastair Norris
[2021] EWHC 1551 (Ch)
Bailii
England and Wales

Updated: 17 June 2021; Ref: scu.663233

Standard Chartered Bank and Another v Registrar of Companies: ChD 1 Jun 2021

Application to appoint new liquidators
His Honour Judge Hodge QC Sitting as a Judge of the High Court
[2021] EWHC 1566 (Ch)
Bailii
Companies Act 2006 1029, Insolvency Act 1986 108, Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009, Limited Liability Partnership Regulations 2001
England and Wales

Updated: 16 June 2021; Ref: scu.663242

Syska (Elektrim Sa) v Vivendi Universal Sa and Others: CA 9 Jul 2009

Mummery, Longmore, Patten LJJ
[2009] EWCA Civ 677, [2009] WLR (D) 236, [2009] 2 CLC 10, [2009] BPIR 1304, [2009] 28 EG 84, [2009] Bus LR 1494, [2009] 2 All ER (Comm) 891
Bailii, WLRD
England and Wales
Citing:
Appeal From – Syska v Vivendi Universal Sa and others ComC 2-Oct-2008
In the course of an international arbitration under which a claim for Euros 1.9 billion, one party declared itself bankrupt in the court in Warsaw. The court was asked as to the effect of this on the arbitration. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.347472

Syska v Vivendi Universal Sa and others: ComC 2 Oct 2008

In the course of an international arbitration under which a claim for Euros 1.9 billion, one party declared itself bankrupt in the court in Warsaw. The court was asked as to the effect of this on the arbitration.
Christopher Clarke J
[2008] EWHC 2155 (Comm), [2008] 2 CLC 459, [2009] BPIR 163, [2009] 1 All ER (Comm) 244, [2009] ILPr 35, [2008] 2 Lloyd’s Rep 636, [2009] Bus LR 367
Bailii
England and Wales
Cited by:
Appeal From – Syska (Elektrim Sa) v Vivendi Universal Sa and Others CA 9-Jul-2009
. .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.276538

Donaldson v O’Sullivan: CA 30 Jul 2008

The trustee in bankruptcy had retired and an order made for the block transfer of the assets to the new trustee. The bankrupt objected and now appealed against the refusal to set the transfer aside.
Held: Section 303(2) allowed the court to make an order appointing a replacement trustee, and was not prevented from making such an order. The appeal failed.
Lord Justice Ward, Lord Justice Dyson and Lord Justice Lloyd
[2008] EWCA Civ 879, Times 06-Oct-2008, [2009] 1 WLR 924, [2009] 1 All ER 1087
Bailii
Insolvency Act 1986 172 298 303(2)
England and Wales
Citing:
Appeal from – Donaldson v O’Sullivan ChD 29-Feb-2008
The court refused to set aside a block transfer order made on the transfer of the trusteeship of the bankrupt’s estate. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.271258

Re Adam Eyton Ltd: CA 1887

In considering the removal of a liquidator, the court referred to the John Moore Gold case: ‘In my opinion, although of course unfitness discovered in a particular person would be a ground for removing him, yet the power of removal is not confined to that, and I do not think that the late Master of the Rolls in the case of In re Sir John Moore Gold Mining Company ((1879) 12 ChD 325 at 331), which has been cited, intended to give an exhaustive definition.’ (Cotton LJ). It is not necessary in order to justify the court under the section in removing the liquidator that there should be anything against the individual. However, in this case the liquidator: ‘may consider that the judgment of this Court is not based in any way on the possibility of any reflection upon himself, either in his conduct in this matter or in his general fitness to be a liquidator of any honourable company in the kingdom – his character is clear.’ and ‘In many cases, no doubt, and very likely, for anything I know in most cases, unfitness of the liquidator will be the general form which the cause will take upon which the Court in this class of case acts, but that is not the definition of due cause shewn. In order to define ‘due cause shewn’ you must look wider afield, and see what is the purpose for which the liquidator is appointed. To my mind the Lord Justice has correctly intimated that the due cause is to be measured by reference to the real, substantial, honest interests of the liquidation, and to the purpose for which the liquidator is appointed. Of course, fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest of the liquidation.’ (Bowen LJ)
Cotton LJ, Bowen LJ
(1887) 36 Ch D 299
Citing:

  • Cited – Re Sir John Moore Gold Mining Co CA 1879
    The court considered an appeal against an order removing the liquidator: ‘I should say that, as a general rule, [the words ‘on cause shown’] point to some unfitness of the person – it may be from personal character, or from his connection with other . .
    (1879) 12 Ch D 325

Cited by:

  • Cited – In re Keypak Homecare Ltd ChD 1987
    The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall . .
    [1987] BCLC 409
  • Approved – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
    Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
    Held: No prejudice had been shown by any procedural irregularity. . .
    [2004] EWHC 2443 (Ch)

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.215940

In re Asphaltic Wood Pavement Co Ltd: 1885

(1885) 30 Ch D 216
Cited by:

  • Cited – In re Charge Card Services Ltd ChD 1987
    The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
    [1987] Ch 150

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.196875

Stewart v Jarvie: IHCS 1938

The permanent trustee acts under the statute for each and every one of the creditors of the sequestered individual, not for himself as an individual.
References: 1938 SC 309
Judges: Lord Moncrieff
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
    (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194221

In re David Lloyd and Co: 1877

The secured claims of debenture holders are pursued, not in the winding up, but by enforcement of the debenture holders’ proprietary rights as chargees of the assets in question. A creditor is a person who ‘is to be considered as entirely outside the company, who is merely seeking to enforce a claim, not against the company, but to his own property’
References: (1877) 6 Ch D 339
Judges: James LJ
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194245

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 subject to the later floating charge. On crystallisation, the later charge took priority. Under the section, the preferential creditors had overall priority. The assets available to pay the liquidation expenses included the assets subject to the floating charge even though that had crystallised before they were incurred: ‘a holder of a subsequent fixed charge which has been made subject to a prior floating charge – either by express provisions in the fixed charge itself or by a restriction in the floating charge of which the holder of the fixed charge had notice – takes his security upon terms that, if before the charged property has been realised under that fixed charge events occur which cause the floating charge to crystallise, then the proceeds of realisation must be paid to the holder of the floating charge; the holder of the fixed charge can have no claim upon those proceeds until the claims under the floating charge have been paid out.’
References: [1993] Ch 388
Judges: Chadwick J
Statutes: Insolvency Act 1984 175(2)
Jurisdiction: England and Wales
This case cites:

  • Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
    It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
    ([1979] 2 LL Rep 142)
  • Applied – In re Camden Brewery 1911
    . .
    ([1911] 106 LT 598)
  • Distinguished – In re Woodroffes (Musical Instruments) 1985
    . .
    ([1985] 2 All ER 908)
  • Followed – Waters v Widdows 1984
    . .
    ([1984] VR 503)
  • Not followed – In re Christonette International Ltd 1982
    In the case of a compulsory liquidation the date on which a floating charge is crystallised was the date on which the winding up order was made and not the date on which the winding up petition was presented. . .
    ([1982] 1 WLR 1245)
  • Applied – In re Barleycorn Enterprises Ltd; Mathias and Davies (a Firm) v Down CA 1970
    The property comprised in a floating charge forms part of the assets of a company for the purposes of paying (1) costs and expenses of winding up as well as (2) preferential debts.
    Phillimore LJ said: ‘Mr Wooton’s submission [for the . .
    ([1970] Ch 465)

This case is cited by:

  • Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
    The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
    Held: Siebe was wrongly decided. The charge was ineffective over the book . .
    ([2004] 2 WLR 783, [2004] 1 All ER 981, [2004] BCC 51, [2004] 1 BCLC 335, , [2004] EWHC 9 (Ch))
  • Distinguished – Griffiths and Another v Yorkshire Bank Plc and Others ChD 7-Oct-1994
    The court considered the application of a company’s assets as between debenture holders and other chargees upon the insolvency of the company. It was the essence of a floating charge that the company could create a prior fixed charge over the asset. . .
    (Gazette 07-Oct-94, [1994] 1 WLR 1427)
  • Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
    The court was asked whether a charge given over book debts in a debenture was floating or fixed.
    Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
    ([2005] 2 All ER 1000, [2004] All ER (D) 390, Times 04-Jun-04, , Gazette 10-Jun-04, [2004] EWCA Civ 670)
  • Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
    Former HL decision in Siebe Gorman overruled
    The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
    Held: The . .
    ([2005] 3 WLR 58, [2005] 2 AC 680, [2005] 4 All ER 209, [2005] All ER (D) 368, [2005] 2 Lloyds Rep 275, [2005] 2 BCLC 269, [2005] BCC 694, , [2005] UKHL 41, , Times 31-Jul-05)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191962

Peat -v Gresham Trust Ltd: HL 1934

The phrase ‘with a view of’ in the context of an assertion of making a faudulent preference required it to be established what the person’s dominant intention was to make such. In order to determine what, on the probabilities, was the ‘dominant, operative or effectual intention in substance and in truth’ of the debtor.
Lord Tomlin said that the onus is: ‘on those who claim to avoid the transaction to establish what the debtor really intended, and that the real intention was, to prefer. The onus is only discharged when the court upon a review of all the circumstances is satisfied that the dominant intent to prefer was present. That may be a matter of direct evidence or of inference, but where there is no direct evidence, and there is room for more than one explanation, it is not enough to say that there being no direct evidence, the intent to prefer must be inferred.’
References: [1934] AC 252, [1934] All ER 82
Judges: Lord Tomlin
Statutes: Bankruptcy Act 1914 44(1)
Jurisdiction: England and Wales
This case is cited by:

  • Cited – MacDonald (HM Inspector of Taxes) v Dextra Accessories Ltd and others CA 28-Jan-2004
    The company had set up a trust for the benefit of its employees. The Inspector sought to tax the payments made into the trust as ’emoluments’
    Held: The appeal was allowed. The payments were ‘potential emoluments’ which were held by the . .
    (Times 03-Feb-04, , [2004] EWCA Civ 22, Gazette 04-Mar-04, [2004] STC 339)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193444

In re Christonette International Ltd: 1982

In the case of a compulsory liquidation the date on which a floating charge is crystallised was the date on which the winding up order was made and not the date on which the winding up petition was presented.
References: [1982] 1 WLR 1245
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194252

Leslie v Leslie’s Creditors: SCS 20 Feb 1900

(Inner House First Division) The Court has power, in an application by a parish minister for his discharge in bankruptcy, to make it a condition of the discharge that the bankrupt shall assign a portion of his stipend to his creditors.
Circumstances in which held that pounds 80 was a reasonable sum so to be assigned out of an income, from stipend, manse, and glebe, of about pounds 270.
References: [1900] SLR 37 – 444
Links: Bailii
Jurisdiction: Scotland

Last Update: 23 September 2020; Ref: scu.611716

Russell v Ross’s Creditors; Pierse v Ross: 31 Jan 1792

References: 31 January 1792 FC, 1792 M 10300, 3 Ross’s LC 177
Judges: Lord Braxfield, Lord Monboddo’s
Jurisdiction: Scotland
This case cites:

  • Cited – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194239

Buchan v Farquharson: 24 May 1797

On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon’s estate did not vest in the trustee in bankruptcy until after that. The trustee brought an action against Farquharson to reduce the assignation, inter alia because it had not been intimated until after the sequestration. The court assoilzied Farquharson on the ground that the assignation had been completed by intimation before Gordon’s estate had vested in the trustee. A sequestration did not prevent a creditor from completing his right by any act independent of the consent of the debtor, such as intimating a previous assignation. But: ‘The trustee on a bankrupt estate will be preferred to a creditor claiming on a voluntary disposition, granted before the sequestration, if the right of the trustee be first completed. And therefore, the propriety of the decision, 8 December 1795, Taylor and Smith against Marshall, in so far as it went upon the supposition that the trustee in such case is bound to make good the previous voluntary disposition, may be doubted.’
References: 24 May 1797 FC, 1797 M 2905, 3 Ross’s LC 137
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194241

Tod’s Trusteess v Wilson: 1869

A trustee’s right and the right of the purchaser, heritable creditor or assignee were ‘simply two independent rights running a race against each other’
References: (1869 ) 7 M 1100
Judges: Lord Kinloch
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194243

Ireland v Neilson: 1755

A debtor had acquired the land by fraud.
Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been.
References: (1755) 5 Br Supp 828
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
  • Followed – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194236

Wylie v Duncan: 1803

Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The following year Archibald was sequestrated and the trustee, who was infeft, sold the tenements. Wylie then produced the letter and insisted that the original transaction had been intended as a security for a loan. He therefore claimed to be entitled to redeem the tenements on payment of the sum borrowed. He brought proceedings against the trustee before the Glasgow magistrates who assoilzied the trustee. Archibald appealed to the Court of Session, arguing that the trustee must take the debtor’s property tantum et tale, subject to the right of redemption.
Held: Personal qualifications which do not appear in the record are unavailing as real burdens on the property and are of no effect against third parties: ‘The question, however, must always return to this, What was truly the extent of real right in the debtor? And although he may be under a relative personal obligation, the real right legally constituted is that only which his sasine bears, and of which it gives assurance to the public; and accordingly, it has at last been held that such personal exceptions have no effect against creditors’ The bankrupt was under an obligation to reconvey the property to the seller on demand, on the ground that that was not a case of a trust qualifying the title of the trustee but was a case where the bankrupt had purchased the estate ‘out-and-out’ and that the obligation to reconvey was purely personal. ‘Tantum et tale has often been pleaded against adjudgers; and if good against them, would be so against trustees. But the law for some time has held otherwise . . . Tantum et tale is good as to objections, which go to the extinction of the subject adjudged; eg if heritable bond adjudged, extinction is a good answer. If right qualified gremio, that is also a good answer. But if not, as here, and not going to extinction, it is a mere personal matter, which touches not the adjudger more than a lender on heritable bond . . . As to an adjudger, if there is any doubt, let us solemnly hear the case. But I hold that there is none. He takes on the faith of the record, not tantum et tale.’
References: 1803 M 10269, 3 Ross’s LC 134
Judges: Lord President Campbell
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194228

Walker (Paterson’s Trustee) v Coyle and Others: SCS 13 Nov 1891

Court of Session Inner House First Division – By agreements purporting to be ‘minutes of lease, entered into in 1879 and 1880, the trustees of J. P. ‘let’ to J. S. P. certain premises, and the pawnbroking stock therein, J. S. P. being bound to pay a rent of a fixed amount for the premises, and 5 per cent. on the value of the stock handed over to him. It was provided that J. S. P. should keep books showing his intromissions with the business, and that in the event of the stock falling below the value at which it had been handed over to him, the trustees should have a right to enter into possession of the premises and stock, and that J. S. P. should be bound to cede possession thereof on receiving fourteen days’ notice. On 24th April 1888 J. S. P. executed deeds of renunciation of the lease in favour of the trustees, who at once entered into possession of the premises and stock of pledges therein. Four days afterwards J. S. P. was sequestrated.
Held that under the agreements the trustees parted with the only right they had in the pledges, and only acquired the personal obligation of the bankrupt in a certain event to deliver over to them the pledges then in his possession; and therefore that the deeds of renunciation were ineffectual as granted within sixty days of bankruptcy in satisfaction of a prior debt within the meaning of the Act 1696, c. 5.
References: [1891] SLR 29 – 87
Links: Bailii
Jurisdiction: Scotland

Last Update: 29 July 2020; Ref: scu.613833

Jones v Bellgrove Properties Limited: 1949

References: [1949] 2 KB 700
Ratio: The court allowed the plaintiff to establish by evidence that his particular debt was included in the total sum acknowledged to be due to a number of creditors.
This case is cited by:

(This list may be incomplete)

Last Update: 11 March 2019
Ref: 187456

Herbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert Berry: HL 1977

References: [1977] 1 WLR 1437, [1977] 1 All ER 161, [1977] UKHL TC_52_113, [1980] AC 562, 53 TC 241, [1979] STC 735, [1979] TR 335
Links: Bailii
Coram: Lord Simon of Glaisdale, Lord Russell
Ratio: The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty.
Lord Russell said: ‘Finally section 325 cannot avail the liquidator: . . It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act’ and ‘So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding – I use the word in a non-technical sense – against the property of a company.’ S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. ‘The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ.’
Statutes: Companies Act 1948 325, Taxes Management Act 1970 61
Jurisdiction: England and Wales
This case cites:

(This list may be incomplete)
This case is cited by:

  • Cited – Fourie v Le Roux and Others ChD (Times 08-Oct-04)
    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 – Brenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD (Bailii, [2005] EWHC 1611 (Ch), Times 19-Sep-05)
    The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .

(This list may be incomplete)

Last Update: 16 July 2018
Ref: 216341

In re Downer Enterprises Ltd: 1974

References: [1974] 1 WLR 1460
Ratio:
This case is cited by:

  • Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL (House of Lords, Bailii, Gazette 21-Mar-02, [2002] UKHL 6, Times 25-Feb-02, [2002] 1 WLR 671, [2003] 1 AC 1, [2002] 2 All ER 113, [2002] 2 Cr App R 9, [2002] HRLR 23, (2002) 166 JPN 431, (2002) 166 JP 333)
    A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .

(This list may be incomplete)

Last Update: 27 September 2017
Ref: 190100

Re Arrows Ltd (In Liquidation); Chd 1 Jul 1992

References: Times 01-May-1992, Gazette 01-Jul-1992
Ratio: Liquidators seeking information from directors were allowed to undertake not to disclose any information gathered to the Serious Fraud Office. Such an undertaking having been given a former company director was not able to refuse to answer questions put to him.
Statutes: Insolvency Act 1986 236(2)
This case is cited by:

  • Appeal from – Re Arrows Ltd (No 4) CA (Independent 08-Apr-93, Gazette 09-Jun-93)
    A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden. . .

(This list may be incomplete)

Last Update: 03-Sep-16
Ref: 85714

Re Ashwell ex parte Salaman; Chd 1912

References: [1912] 1 KB 390
Coram: Phillimore J
Ratio: After the presentation of a bankruptcy petition against him, the debtor obtained an adjournment of the petition by paying the petitioning creditors money which he falsely represented to be that of a third party. The debtor was afterwards adjudicated bankrupt, and the trustee claimed repayment of the money from the petitioning creditors, relying on the doctrine of relation back. The petitioning creditors submitted that the debtor was estopped by his misrepresentation from saying that the money was his, and that the trustee in bankruptcy could be in no better position.
Held: Repayment was ordered. The money had become the trustee’s money by reason of the doctrine of relation back before the representation was made. He had a higher title and could not be estopped from claiming repayment of his own money by a later misrepresentation about it. The doctrine of relation back was taken literally.
Phillimore J said: ‘No doubt, when a bankrupt is estopped by some representation of his made in the course of carrying on his business, his trustee who takes his estate would be, just as much as an executor, bound, quoad the estate, by the representation, and be estopped. But here the trustee takes by a higher title. This £125 was the trustee’s money by reason of the doctrine of relation back, and any statement made at the time of payment on behalf of Ashwell [the bankrupt] that it was not Ashwell’s money cannot estop the trustee from claiming the money. For this purpose, Ashwell and the trustee are different persons, and it is just the same as if Ashwell had represented that it was the money of somebody else . . This was not Ashwell’s money to make any representation about at all. It was in the contemplation of the law the trustee’s money, and, therefore, there is no estoppel.’
This case is cited by:

  • Cited – Re Dennis (A Bankrupt) CA (Ind Summary 22-May-95, [1995] 3 All ER 171, [1995] 3 WLR 367)
    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; . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 186762

International Air Transport Association v Ansett Australia Holdings Ltd; 6 Feb 2008

References: [2008] HCA 3, (2008) 234 CLR 151, (2008) 242 ALR 47, (2008) 82 ALJR 419, (2008) 65 ACSR 1, (2008) 26 ACLC 38
Links: Austlii
Coram: Gleeson CJ
Ratio: (High Court of Australia) The rules of the clearing house scheme had been modified following the British Eagle decision so as to exclude any liability or right of action for payment between member airlines.
Held: (by a majority, Kirby J dissenting) The rule changes were effective to make the IATA the sole creditor of Ansett, and that the revised system did not have the effect of administering debts due to an insolvent company otherwise than in accordance with the mandatory pari passu rule. The court referred to Ex p Mackay and suggested that Lord Cross’ speech in British Eagle was based in part on the anti-deprivation principle; and that there was no need for recourse to the rule that a contract which is contrary to public policy is void, because the statute was an overriding one which applied according to its terms.
This case cites:

  • Cited – British Eagle International Airlines Ltd v Compagnie National Air France HL ([1975] 1 WLR 758, [1975] 2 All ER 390)
    British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 10-Aug-16
Ref: 442611

Kitchen v Bartsch; 22 Nov 1805

References: [1805] EngR 345, (1805) 7 East 53, (1805) 103 ER 21
Links: Commonlii
Ratio: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.

Last Update: 23-Jul-16
Ref: 343418

Cotton v James; 30 Jun 1830

References: (1830) 1 B & Ad 128, [1830] EngR 713, (1830) 1 B & Ad 128, (1830) 109 ER 735
Links: Commonlii
Ratio: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.
This case cites:

  • See Also – Cotton v James, Gent One & C (Commonlii, [1829] EngR 293, (1829) M & M 273, (1829) 173 ER 1157)
    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, & C (Commonlii, [1829] EngR 296, (1829) 3 Car & P 505, (1829) 172 ER 522)
    . .

(This list may be incomplete)
This case is cited by:

  • Cited – Gibbs and others -v- Rea PC (Times 04-Feb-98, Bailii, [1998] UKPC 3, [1998] AC 786)
    (Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
  • See Also – James, Gent, One &C, v Cotton (, Commonlii, [1831] EngR 127, (1831) 7 Bing 266, (1831) 131 ER 103)
    . .

(This list may be incomplete)

Last Update: 13-Jul-16
Ref: 184695

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

References: [1829] EngR 293, (1829) M & M 273, (1829) 173 ER 1157
Links: Commonlii
Ratio: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.
This case is cited by:

  • See Also – Cotton v James, Gent One, & C (Commonlii, [1829] EngR 296, (1829) 3 Car & P 505, (1829) 172 ER 522)
    . .
  • See Also – Cotton v James ((1830) 1 B & Ad 128, Commonlii, [1830] EngR 713, (1830) 1 B & Ad 128, (1830) 109 ER 735)
    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 &C, v Cotton (, Commonlii, [1831] EngR 127, (1831) 7 Bing 266, (1831) 131 ER 103)
    . .

(This list may be incomplete)

Last Update: 13-Jul-16
Ref: 322161