Category: Insolvency

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

References: [1829] EngR 296, (1829) 3 Car & P 505, (1829) 172 ER 522
Links: Commonlii
Ratio:
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. . .

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

  • 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: 322164

In re Pitchford; 11 Jan 1924

References: [1924] 2 Ch 260
Ratio:
This case is cited by:

  • Cited – In re Nortel Companies and Others SC (Bailii, [2013] UKSC 52, [2013] 4 All ER 887, [2013] Bus LR 1056, [2013] 2 BCLC 135, [2013] Pens LR 299, [2013] BCC 624, [2013] BPIR 866, [2013] WLR(D) 300, [2014] 1 AC 209, WLRD, Bailii Summary, UKSC 2011/0259, SC Summary, SC, [2013] 3 WLR 504)
    The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
    Held: Liabilities which arose from financial support directions or contribution notices . .
  • Cited – General Dynamics Information Technology Ltd -v- Carranza EAT (Bailii, [2014] UKEAT 0107_14_1010)
    EAT DISABILITY DISCRIMINATION – Reasonable adjustments
    UNFAIR DISMISSAL – Reasonableness of dismissal
    The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make . .
  • Cited – BPE Solicitors and Another -v- Gabriel SC (Bailii, [2015] UKSC 39, [2015] 4 Costs LO 467, [2015] WLR(D) 259, [2015] AC 1663, [2015] 4 All ER 672, [2015] BPIR 779, [2015] 3 WLR 1, Bailii Summary, WLRD, UKSC 2014/0026, SC, SC Summary, SC Video)
    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 . .

(This list may be incomplete)

Last Update: 06-Jul-16
Ref: 537714

Fletcher et al v Dominam Sedley et al; 6 Mar 1704

References: [1704] EngR 42, (1704) 2 Vern 490, (1704) 23 ER 913
Links: Commonlii
Ratio:A makes a bill of sale of his goods to a trustee, for one who lived with him as his wile, and so reputed. Bill of sale set aside as fraudulent against creditors. A purchases a lease of a house in the name of B., and takes a declaration of trust to permit A. to enjoy for life, and then in trust for one who lived with him as his wife, and was so reputed. This lease is not assets of A. nor liable to his creditors after his death ; for when a man purchases, he may settle the estate as he pleases.

Last Update: 20-Jun-16
Ref: 392137

Singh v HM Revenue and Customs; UTTC 15 May 2010

References: [2010] UKUT 174 (TCC), [2010] BPIR 933, [2010] BTC 1548, [2010] STI 1723, [2010] STC 2020
Links: Bailii
Coram: Warren J P
Ratio: 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 his bankrupty. He now renewed his application to bring judicial review.
Held: He had no standing to bring judiial review proceedings. Warren J approved the aproach suggested in Hurren, that agreement should be sought between the bankrupt and the inspector, with the trustee ensuring that any agreement was proper.
This case cites:

  • Cited – Smith (a bankrupt) -v- Braintree District Council HL ([1989] 3 All ER 897, [1989] 3 WLR 1317, [1990] 2 AC 215)
    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 – Heath -v- Tang, Stevens -v- Peacock CA (Independent 14-Oct-93, Times 11-Aug-93, [1993] 4 ALL ER 694, [1993] 1 WLR 1421)
    The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
  • Cited – Wordsworth -v- Dixon CA ([1997] BPIR 337)
    The bankrupt had been a defendant in the action brought by the plaintiff. The court considered his standing to appeal.
    Held: The right to appeal vested in the trustee. Sir Thomas Bingham MR referred to the case of Heath v Tang and said: ‘that . .
  • Cited – Re a Debtor, ex parte the Debtor -v- Dodwell ChD ([1949] Ch 236)
    Harman J held that it was for the bankrupt’s trustee alone to settle with the Crown in a case where the bankrupt had been discharged and there was no tax assessment. . .
  • Cited – Re Hurren (a bankrupt) ChD ([1983] 1 WLR 183)
    There might have been a surplus after paying the debts due to the Inland Revenue (the major creditor).
    Held: The way forward was for the trustee to agree the tax liability with the Revenue but only with the consent of the bankrupt. Walton J . .
  • Cited – Sivasubramaniam -v- Wandsworth County Court, Management of Guildford College of Further & Higher Education and Another CA (Gazette 23-Jan-03, Bailii, [2002] EWCA Civ 1738, [2003] 1 WLR 475, [2003] CP Rep 27, [2003] 2 All ER 160)
    Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.

(This list may be incomplete)

Last Update: 07-Jun-16
Ref: 428155

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

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

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

  • Cited – Burnett’s Trustee -v- Grainger and Another HL (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, House of Lords, [2004] UKHL 8, Bailii, 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 interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the estate . .

(This list may be incomplete)
Last Update: 05-Dec-15 Ref: 194239

Surtees And Another, Assignees Of The Estate And Effects Of A Bankrupt, v Ellison; 6 Jul 1829

References: [1829] EngR 594, (1829) 9 B & C 750, (1829) 109 ER 278
Links: Commonlii
Evidence of a trading which ceased before the 6 G. 4, c. 16, took effect, will not support a commission of bankrupt issued after that time.
This case is cited by:

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 322462

In Re Cabletel Installations Ltd; 1 Jul 2004

References: [2005] BPIR 28
Coram: Chief Registrar Baister
The court criticised the remuneration claimed by the insolvency office-holder were work had been carried out at too senior a level, and the calculation was an uncritical application of the time spent, and where there were more and lengthier meetings and excessive reviews than the administration warranted. Chief Registrar Baister set out the approach he would adopt to fixing the applicant administrators’ remuneration: ‘I shall examine the main work streams and some of their subcategories and consider the time spent and whether it was justified; I shall have regard, insofar as I can, to the level at which work has been done; I shall consider the benefit of the work done and, to any extent appropriate, whether it was necessary. I shall then look at the larger picture and consider the case in terms of value. In doing so I shall have regard to the factors set out in the rules and to other factors peculiar to this case. I shall bear in mind that time spent is a measure not of the value of the service rendered but of the cost of rendering it. I do not propose, therefore, to allow myself to be influenced to any real extent by the final figures which the administrators claim, since, it seems to me that, prima facie, they reflect the cost of time rather than the value of the service provided. I shall resolve any doubts I have against the administrators.’
This case cites:

  • Cited – In Re Independent Insurance Co Ltd (No 2) ([2003] 1 BCLC 640)
    Ferris J was required to consider the insolvency office-holders’ remuneration, assisted by a solicitor with wide insolvency experience, whose report sets out the general principles then accepted by the insolvency profession as the yardstick for . .
  • Cited – Mirror Group Newspapers Plc -v- Maxwell and Others (No 2) ChD (Times 15-Jul-97, [1998] 1 BCLC 638)
    Court reminded insolvency practitioners of fiduciary duties to creditors when refusing application for further payment on account of costs. Ferris J considered the principles applicable to fixing the remuneration of receivers of the estate of Robert . .

This case is cited by:

  • Cited – Brook -v- Reed CA (Bailii, [2011] EWCA Civ 331)
    The court was asked ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’
    Held: Though the judge should have made express reference to and placed reliance upon the Practice . .
  • Cited – Brook -v- Reed CA ([2012] 1 BCLC 379, [2011] BPIR 583, Bailii, [2011] BCC 423, [2011] EWCA Civ 331, [2012] BCLC 379, [2012] 1 WLR 419, [2011] 3 All ER 743, [2011] NPC 34, [2011] 4 Costs LR 622)
    The court was asked: ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’ The bankrupt had considered that the costs first awarded to the trustee in bankruptcy and the trustee’s . .

Last Update: 24-Sep-15 Ref: 430875

Leake v Loveday And Brooks; 21 Nov 1842

References: [1842] EngR 1063, (1842) 4 Man & G 972, (1842) 134 ER 399
Links: Commonlii
A in 1837 bought goods of B, and allowed B to remain in possession of them up to 1839, when B became bankrupt. B’s assignees made no claim, and B. retained possession of the goods until 1841, when the sheriff under a fi fa against B seized and sold the goods. After the sale B’s assignees gave notice of their claim to the sheriff, who upon receiving an indemnity handed over the proceeds to them. In trover brought by A against the sheriff, held :-that, under the plea of not possessed, the sheriff might set up the title of the assignees.

Pemberton v Topham; 15 Nov 1838

References: , [1838] EngR 936, (1838) 1 Beav 316, (1838) 48 ER 962
Links: Commonlii
Commonlii In a creditor’s suit instituted by the Plaintiff on behalf of himself and all other creditors, the Defendant is entitled on motion, at any time before decree, to have the bill dismissed, on payment of the demand of the Plaintiff and his costs as between party and party; but if there be other defendants their costs must also be paid.

HM Customs and Excise v Jack Baars Wholesale, Baars, and Baars; CmpC 16 Jan 2004

References: [2004] EWHC 18 (Ch), [2004] BPIR 543
Links: Bailii
Coram: Mr Justice Lindsay
Statutes: Insolvent Partnerships Order 1994
This case is cited by:

  • Cited – Re Autotech Design Ltd, HMRC -v- Autotech Design Ltd ChD ([2006] EWHC 1596 (Ch))
    Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to . .
  • Cited – Revenue & Customs -v- SED Essex Ltd ChD (Bailii, [2013] EWHC 1583 (Ch))
    The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
    Held: The . .

Patrick v Shedden; 29 Apr 1853

References: [1853] EngR 496, (1853) 2 El & Bl 14, (1853) 118 ER 674
Links: Commonlii
S raised an action against P before the Lords of Session in Scotland, who dismissed the action, and found P entitled to his expenses. S appealed to the House of Lords. Pending the appeal, P petitioned the Lords of Session for decree arid interim execution, under stat, 48 G 3, c 151, s. 17, for the expences. The Lords of Session allowed the decree, pronouncing an interlocutor and interim decree for payment upon security to repay (‘caution to repeat’}in the event of a reversal of the original judgment in the House of Lords, with warrant, in failure of payment after a time named, to poind S’s goods. – Security having been given, and the time havirig expired, P now sued for the amount of the expences.
Held: The action was not maintainable, the decree for payment not being in the nature of a final judgment.

Utterson v Vernon And Others; 5 Feb 1790

References: (1790) 3 Term Reports 539, [1790] EngR 2276, (1790) 3 TR 539, (1790) 100 ER 721
Links: Commonlii
Coram: Lord Kenyon Ch J, Grose, Buller, Ashurst JJ
There had been an agreement to lend to the bankrupt some stock which she undertook to replace. The act of bankruptcy and the declaration of her bankruptcy took place before the stock was replaced. The parties disputed whether the agreement created a provable debt. It was argued that the agreement did not provide for payment of a sum certain but only for the replacement of the stock at some indefinite point in the future. It was therefore a claim for unliquidated damages.
Held: (Majority) There was a provable debt.
Lord Kenyon thought that there was a provable debt in an amount equal to the value of the stock on the day of bankruptcy.
Ashurst J said that the only provable debts were those which could be recovered in the form of an indebitatus assumpsit, thus excluding any claim in damages.
Buller J said that the form of action was not determinative and the real question was whether the amount of the debt could be ascertained without the intervention of a jury.
Grose J said that a creditor could prove for a claim in damages provided that they were in a liquidated sum.
Lord Kenyon CJ said: ‘The question in this case depends on a simple principle of law, which cannot be doubted. It is clear, that where one person, previous to his bankruptcy, is indebted to another in a precise sum which is ascertained, the latter may prove his debt under the commission: but it is as clear, that where there is only a cause of action existing, where the debt is to arise on a stipulation which has not been broken previous to the time of the bankruptcy, and where the debt remains to be inquired into, there the creditor cannot prove his debt under the commission, and the demand will remain undischarged by the certificate.’
This case is cited by:

  • Cited – McGuinness -v- Norwich and Peterborough Building Society CA (Bailii, [2011] EWCA Civ 1286, [2012] BPIR 145, [2011] NPC 117)
    The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the . .

Re Doran Constructions Pty Ltd (in liq); 27 Mar 2002

References: [2002] NSWSC 215, 168 FLR 116, (2002) 194 ALR 101, 20 ACLC 909
Links: Austlii
Coram: Campbell J
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation – EVIDENCE – liquidator’s examinations – whether evidence given at is governed by Evidence Act 1995 (NSW) – EVIDENCE – legal professional privilege – circumstances in which joint retainer of solicitor exists – EVIDENCE – procedure to adopt when deciding whether legal professional privilege does not exist – EVIDENCE – waiver of client legal privilege – disclosure of substance of advice – disclosure made knowingly and voluntarily – disclosure by agent or employee authorised to make it – disclosure made under compulsion of law
This case is cited by:

Ex Parte Job Broadhurst In The Matter Of Job Broadhurst; 7 Dec 1852

References: (1832) 22 LJ Bank 21, [1852] EngR 1101, (1852) 2 De G M & G 953, (1852) 42 ER 1145
Links: Commonlii
Coram: Maule J
A covenant given by the father of two existing partners to an incoming partner to pay any shortfall in the debts due to the firm below a stated sum and to bear the debts of the existing partners in excess of a stated sum was treated not as a contractual liability to pay a stated or liquidated sum but as a liability for unliquidated damages. The court an appeal against the refusal of the Commissioner to set aside the adjudication of bankruptcy.
Maule J said: ‘The question now before the Court is, whether the debt or alleged debt or demand asserted to be due is one which will be sufficient, as a petitioning creditor’s debt, to support an adjudication in bankruptcy. I am of opinion that it is not. It is clear from the recitals in the deed of partnership which contains the covenant in question, that the engagement entered into was one entered into for the benefit of Mr Walker. The covenant was with Mr Walker for the benefit of Mr Walker, and was not a covenant with Mr Walker for the benefit and on behalf of Walker, Perry & Broadhurst. They had, in fact, no interest in it, but Mr Walker was alone interested; it was a covenant to pay the difference between the debts due from the old firm stated in the schedule and any further debts; it was to pay the excess of one set of debts-over the amount of debts due to the firm. That being so, it seems to me impossible to turn the covenant into a covenant to pay a liquidated sum, or any sum, to Walker. The covenant could not be performed by doing that; the object of the parties was to put the firm in the same position in which they would be if the debts, active and passive, were to the amount stated in the covenant, and there is no specific sum engaged to be paid to Walker. It cannot be treated at law as a specific sum of money to be received, for the right to receive would be co-extensive only with the demand sustained; and this cannot be so made the subject of computation as to be a fit ground for a petitioning creditor’s debt. No action could be framed upon it. I do not mean to say that a covenant to pay to A. for the benefit of A, B. and C. may not make a good petitioning creditor’s debt. In the present case there might not be a sufficient damage to constitute the debt; or, even suppose that damage to the amount of 100l, was shewn, still it does not follow that the money could have been recovered, as anything to be recovered must be in the shape of damage, and such damage is not of a character to amount to a petitioning creditor’s debt.’
This case is cited by:

  • Cited – McGuinness -v- Norwich and Peterborough Building Society CA (Bailii, [2011] EWCA Civ 1286, [2012] BPIR 145, [2011] NPC 117)
    The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the . .

Wagstaff v Read; 20 Nov 1683

References: [1683] EngR 80, (1683) 2 Chan Cas 156, (1683) 22 ER 892 (C)
Links: Commonlii
Purchaser not hurt in Chancery – Portman became bankrupt, the commissioners assign his Estate, whereof the Plaintiff made Title to some Goods, and exhibits his Bill. against the Defendant to discover the Goods, and their Value, and what and how much he paid for them, because the Plaintiff charges, they came to the Defendant’s possession after the bankrupt broke : The Defendant sets forth, for what Goods did ever come to his Hands, he bought of Portman bona fide, for a full and valuable consideration, nor did not know, nor had any Notice that at the Time of buying until the now Bill, was a bankrupt, or of any Account of his Bankruptcy, and pleads this Matter against any Discovery.

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

References: [2012] UKUT 278 (TCC)
Links: Bailii
Coram: Warren J P, Hellier TJ
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.

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

References: [2012] UKUT 279 (TCC)
Links: Bailii
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.

Nickel and Goeldner Spedition GmbH v ‘Kintra’ UAB: ECJ 4 Sep 2014

References: C-157/13, [2014] EUECJ C-157/13
Links: Bailii
Coram: A. Tizzano, P
ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Article 3(1) – Concept of an ‘action related to insolvency proceedings and closely connected with those proceedings’ – Regulation (EC) No 44/2001 – Article 1(2)(b) – Concept of ‘bankruptcy’ – Action for payment of a debt brought by the insolvency administrator – Debt arising out of the international carriage of goods – Relationship between Regulations Nos 1346/2000 and 44/2001 and the Convention for the International Carriage of Goods by Road (CMR)
Statutes: Regulation (EC) No 1346/2000 3(1), Regulation (EC) No 44/2001 1(2)(b), Convention for the International Carriage of Goods by Road

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

References: (2000) 2 BCLC 321
Coram: Jonathan Parker J
cw The petitioners’ case was that they had a legitimate expectation that the company’s business would be sold, either by virtue of an agreement to that effect or at their request, was not made out on the facts.
This case is cited by:

  • Approved – Anderson -v- Hogg IHCS (Times 22-Jan-02, ScotC)
    The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the . .

Pritchard v Hitchcock; 6 Jun 1843

References: (1843) 6 Man & G 151, [1843] EngR 760 (B)
Links: Commonlii
P (the plaintiff) had drawn bills requiring WH to pay P a sum of money three months after date. WH accepted them, but to gain more time for WH, GH (the defendant) guaranteed payment of the bills. P pressed for payment. WH did ultimately pay P but was declared bankrupt. WH’s assignees in bankruptcy brought an action against P and obtained recovery of the sum paid as a fraudulent preference. P then sued GH on the guarantee. One defence of GH was that P had been paid and the debt discharged. GH contended that the judgment in favour of the assignees was not admissible to prove non-discharge of the debt.
Held: P was entitled to prove in the circumstances payment by WH had not discharged the debt, but GH was not a party to the assignee action. The matter was ordered to be retried as to whether there had been ‘a real and genuine payment of the bills by the bankrupt.’
This case cites:

This case is cited by:

  • Cited – Lloyds Bank Plc -v- Independent Insurance Co Ltd CA (Times 03-Dec-98, Bailii, [2000] 1 QB 110, [1998] EWCA Civ 1853)
    The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
    Held: The appeal was turned down. The bank was . .

Wilson v Greenwood; 17 Jul 1818

References: [1818] EngR 607, (1818) 1 Swans 471, (1818) 36 ER 469
Links: Commonlii
Coram: Lord Eldon LC
Articles of partnership having provided, that on dissolution by death, notice, or misconduct, of a partner, the remaining partners should have the option of taking his share at a valuation, payable by yearly instalments in the course of seven years: and that on the bankruptcy or insolvency of a partner, the partnership should be immiediately void as to him ; by a deed, four years subsequent, the partners declared (after a recital that such was their intention in the articles), that in the event of bankruptcy or insolvency, the same arrangement should be practised as on dissolution by death, notice, or misconduct : one of the partners having become bankrupt within a few months after the execution of the latter deed, his assignees are not bound by it. Whether a provision in articles of partnership, that on the bankruptcy of a partner his share shall be taken by the solvent partners, at a sum to be fixed by valuation, and payable by installments in a course of years, is not void by the statutes concerning bankrupts.
An owner of property may, on alienation, qualify the interest of his alienee, by a condition to take effect on bankruptcy; but cannot, by contract or otherwise, qualify his own interest by a like condition, determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors.
This case is cited by:

Cook And Others, Assignees Of Williams Hitchcock, A Bankrupt, v Pritchard; 15 Jan 1843

References: [1843] EngR 182, (1843) 5 Man & G 329, (1843) 134 ER 590
Links: Commonlii
This case is cited by:

  • See Also – Pritchard -v- Hitchcock ((1843) 6 Man & G 151, [1843] EngR 760 (B), Commonlii)
    P (the plaintiff) had drawn bills requiring WH to pay P a sum of money three months after date. WH accepted them, but to gain more time for WH, GH (the defendant) guaranteed payment of the bills. P pressed for payment. WH did ultimately pay P but . .

Re Swissair; Chd 6 Aug 2009

References: [2009] EWHC 2099 (Ch)
Links: Bailii
Coram: David Richards J
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.
Statutes: Insolvency Act 1986

Whitmore v Turquand; 21 Dec 1860

References: [1860] EngR 1304, (1860) 1 J & H 444, (1860) 70 ER 821
Links: Commonlii
Where a composition deed is executed in favour of all creditors who shall accede within a stipulated time, creditors who neither assent nor dissent within the time are not necessarily excluded from all benefit of the deed; and, under the circumstances of the case, creditors who had delayed their accession to a composition deed for several years after the limited time. Held, entitled to participate in the benefits thereof.

Robert Hull Terrell v James Button; 16 Mar 1854

References: [1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Links: Commonlii
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
Statutes: Winding Up Act of 1848

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Robertson And Another, Assignees of Milburn, Hallowell, And Walmlsey, Bankrupts, v Sir Thos Henry Liddell, Bart; 28 May 1808

References: [1808] EngR 211, (1808) 9 East 487, (1808) 103 ER 659
Links: Commonlii
The departure of a trader from his dwellinghouse, with intent to delay his creditors, is an act of bankruptcy, though no creditor be thereby in fact delayed. And the words in the stat. 1 Jac 1 e15 s2 following this and other acts of bankruptcy committed, viz. ‘to the intent or whereby his creditors shall or may be defeated or delayed,” &e. are to be read ‘to the intent his creditors shall, or whereby, (or that thereby) they may be defeated,’ &e. But the lying in prison six months upon an arrest is made a substantive act of bankruptcy independent of any intent of the trader. So in the case of an act of bankruptcy by the trader’s beginning to keep house, the denial of a creditor is usually given in evidence, not to shew the fact of the creditor’s being, delayed, but as evidence to explain the equivocal act of the trader’s keeping in his house, and to shew that he began to keep house with intent to delay his creditors.

Slack v Tolson; 4 Aug 1826

References: [1826] EngR 1119, (1826) 1 Russ 553, (1826) 38 ER 213
Links: Commonlii
A, having previously borrowed £1000 of B, executes to him a bond for that sum, and B, two days afterwards, executes a deed, whereby he covenants that the bond shall not be enforced: some years afterwards, B having become bankrupt, his assignees bring an action on the bond, and file a bill to have the deed of covenant declared fraudulent. Held, that the Court will not interfere against the legal operation of the deed; there being nothing to shew that B was insolvent when he executed it; and there being evidence, that A. had also at that time pecuniary claims on E, and that the execution of the bond was accompanied by an agreement, that payment of it should not be enforced.

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

Holt v Hardcastle; 3 Nov 1838

References: , [1838] EngR 882, (1838) 3 Y & C Ex 236, (1838) 160 ER 688
Links: Commonlii
Where a sole plaintiff becomes bankrupt, and the defendant wishes to speed the cause, although he can obtain no direct order against the assignees to continue the suit, he may move that unless they file a supplemental bill within a given time the suit shall be dismissed.

In Re Melinek (A Bankrupt); Bristol and West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt): ChD 10 Apr 1997

References: Times 10-Apr-1997, (1998) 1 BCLC 485
Coram: David Young QC
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consnet should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The court has a free hand in these situations to do what was right and fair. Leave was granted.
Statutes: Insolvency Act 1986 285(3)
This case cites:

  • See also – Scotlife Home Loans (No 2) Limited -v- Melinek and Melinek CA (Bailii, [1997] EWCA Civ 2335)
    The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

This case is cited by:

  • See also – Scotlife Home Loans (No 2) Limited -v- Melinek and Melinek CA (Bailii, [1997] EWCA Civ 2335)
    The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

Macmillan Inc v Bishopsgate Investment Trust Plc; Chd 17 Mar 1993

References: Gazette 17-Mar-1993
Evidence given to a liquidator was not discoverable in civil proceedings.
Statutes: Companies Act 1985
This case cites:

  • Appealed to – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

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

  • Appeal from – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

(This list may be incomplete)
Last Update: 11-Nov-15 Ref: 83282

Harms Offshore AHT ‘Taurus’ Gmbh and Co KG v Bloom and Others: CA 26 Jun 2009

References: [2009] EWCA Civ 632, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Links: Bailii, Times
Coram: Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
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 statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.
Statutes: Insolvency Act 1986
This case cites:

  • Cited – In Re Oriental Inland Steam Company ex parte Scinde Railway Company CA ((1874) LR 9 Ch App 557)
    The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
    Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
  • Cited – Mitchell -v- Carter ChD ([1997] 1 BCLC 673)
    Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . .
  • Cited – Re Vocalion (Foreign) Ltd ([1932] 2 Ch 196)
    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 . .
  • Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak and another PC ([1987] 1 AC 871)
    The Board was asked where a civil claim should be tried.
    Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a sufficient . .
  • Cited – Polly Peck International Plc -v- The Marangos Hotel Company Ltd & Others CA (Times 18-May-98, Bailii, [1998] EWCA Civ 789, [1998] 3 All ER 812, [1998] 2 BCLC 185)
    Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
    Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
  • Cited – Barclays Bank -v- Homan CA ([1993] BCLC 680)
    If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .