Category: Insolvency

In re New Cap Reinsurance Corporation Ltd: ChD 15 Mar 2011

Judges:

Lewison J

Citations:

[2011] EWHC 677 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – New Cap Reinsurance Corporation Ltd and Another v Grant and Others CA 9-Aug-2011
The court was asked whether Mr Gibbons, liquidator of New Cap Reinsurance Corporation Ltd (New Cap), could enforce in England an order which provided, among other things, for the payment of sums of money by the Defendants to New Cap, which he . .
At First Instance – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 October 2022; Ref: scu.441631

White v Davenham Trust Ltd: ChD 1 Nov 2010

Judges:

Floyd J

Citations:

[2010] EWHC 2748 (Ch), [2011] BPIR 280, [2011] Bus LR 615, [2011] BCC 77

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .

Cited by:

Appeal from – White v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 October 2022; Ref: scu.425786

Re Thoars (Dec’d); Reid v Ramlort Ltd: ChD 15 Nov 2002

The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be valued at the time it was assigned. Following Brewin Dolphin, the valuer was not to take into account events which occurred after the assignment was completed, save to the extent that they were relevant at the date of the transaction. The valuation was for the judge.

Judges:

Andrew Morritt VC

Citations:

Times 23-Nov-2002, Gazette 30-Jan-2003, [2002] EWHC 2416 (Ch), [2003] BPIR 489

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
See Also – Reid v Ramlort Ltd IHCS 14-Oct-1998
A Scottish court has no jurisdiction to act in a Scottish bankruptcy case could not act to retrieve property assigned without consideration to an English company with no connection to Scotland other than the gift. . .
Full Hearing – Ramlort Ltd v Michael James Meston Reid CA 8-Jul-2004
The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the . .

Cited by:

See also – Reid v Ramlort Ltd IHCS 14-Oct-1998
A Scottish court has no jurisdiction to act in a Scottish bankruptcy case could not act to retrieve property assigned without consideration to an English company with no connection to Scotland other than the gift. . .
Preliminary hearing – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 2003
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 October 2022; Ref: scu.178119

In re Wanser Ltd: 1891

A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that under Scottish law the landlord was a secured creditor at the date of commencement of the winding up, and therefore in the same position as a mortgagee Proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave.

Judges:

North J

Citations:

[1891] 1 Ch 305

Jurisdiction:

England and Wales

Cited by:

Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Landlord and Tenant

Updated: 12 October 2022; Ref: scu.567273

Regina v Vandervell: CACD 30 Oct 1997

The defendant had been convicted of being involved in the management of a company and of obtaining credit, whilst being an undischarged bankrupt.
Held: These were serious and repeated offences. The sentence of four years and three months imprisonment was not excessive.

Judges:

Lord Justice Waller Mr Justice Owen And Mr Justice Sullivan

Citations:

[1997] EWCA Crim 2716

Jurisdiction:

England and Wales

Citing:

Distinguished – Regina v Theivendran CACD 1992
For eight offences of being concerned with the management of a company whilst an undischarged bankrupt, a sentence of nine months’ imprisonment was reduced to six months. There had been a breach of the order but there had been no dishonesty, and . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Insolvency, Company

Updated: 11 October 2022; Ref: scu.152171

AB Agri Ltd v Curtis and Others: Misc 22 Jul 2016

(Leeds County Court) The creditor sought to have a proof admitted for pounds 479k, but the chair admitted it only for pounds 1.00, and the IVA proposal was accepted again the wishes of the creditor. The creditor said that the IP had misunderstood the claim and should have treated it as liquidated. The chair responded that in fact the claim (under a guarantee) was disputed on substantial grounds and was likely to fail.

Judges:

Behrens HHJ

Citations:

[2016] EW Misc B18 (CC)

Links:

Bailii

Statutes:

Insolvency Rules 1986 5.21 5.22, Insolvenct Act 1986 262

Jurisdiction:

England and Wales

Citing:

Cited – Re a Debtor (No 222 of 1990) ex parte the Bank of Ireland ChD 1992
Harman J discussed the rules of a creditors’ meeting: ‘In my judgment the scheme of the meeting rules in r 5.17 is quite plainly a simple one. As one would expect the meeting is not the place to go into lengthy debates as to the exact status of a . .
Cited – Power v Petrus Estates Ltd and others ChD 31-Oct-2008
The chairman of the creditors meeting had marked the proof of Petrus as objected to but had allowed Petrus to resulting in the appointment of the joint liquidators. The claimant now challenged this saying that had Petrus not been allowed tp vote he . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 October 2022; Ref: scu.567378

MF Global UK Ltd, Re Investment Bank Special Administration Regulations 2011: ChD 4 Jul 2014

Application to enable a settlement agreement to be made which would compromise and release all tracing and other claims between MF Global UK Limited (MFGUK) as trustee of the trust of client money and the general estate of MFGUK acting by its joint administrators.
Held: There was nothing to exclude the statutory power of compromise.

Judges:

David Richards J

Citations:

[2014] EWHC 2222 (Ch), [2014] WLR(D) 294, [2014] Bus LR 1156

Links:

Bailii, WLRD

Statutes:

Trustee Act 1925 15, Investment Bank Special Administration Regulations 2011

Jurisdiction:

England and Wales

Cited by:

Cited – Airways Pension Scheme Trustee Ltd v Fielder and Another (3032) ChD 11-Nov-2019
. .
Lists of cited by and citing cases may be incomplete.

Financial Services, Insolvency

Updated: 07 October 2022; Ref: scu.533807

Jeeg Global Ltd v Hare: QBD 29 Mar 2012

The claimant had obtained an order restricting the defendant from asserting any kind of insolvency in the claimant. The defendant now sought the strike out of the claim as an abuse of process. He said that any such disclosure had been on one occasion to one person and that the proceedings were disproportionate. It was not disputed that the claimant was not insolvent.
Held: The claim was not to be struck out: ‘Once a court is satisfied that words complained of are false in such circumstances, there is little risk of an interference with the Art 10 rights of a defendant if the defendant is prohibited from speaking them. The fact that it is common ground that the words complained of are false means that the trial court will not be concerned that a final injunction (if it comes to consider one) might be an interference with the right of freedom of expression. ‘

Judges:

Tugendhat J

Citations:

[2012] EWHC 773 (QB)

Links:

Bailii

Citing:

Cited – Proctor v Bayley CA 1889
A final injunction was refused in a patent case because, although the defendant had been found to infringe, the court did not accept there was any basis to infer that there would be a continuance of the wrongful activity to justify a quia timet . .
Cited – Citation Plc v Ellis Whittam Ltd QBD 14-Mar-2012
The company parties were competitors. The claimant alleged slander and malicious falsehood. Tugendhat J considered and reviewed the law applicable to an application for an interim restraining injunction, and a final order granted at trial. . .
Cited – Khader v Aziz and Others CA 23-Jun-2010
The claimant brought defamation proceedings after she had found and returned a valuable necklace belonging to the first respondent. The claim had been dismissed as an abuse of process.
Held: The claimant’s appeal failed: ‘there is such a . .
Cited – Lait v Evening Standard Ltd CA 28-Jul-2011
The claimant alleged defamation by the defendant in an article regarding her expenses claims as an MP. She appealed against summary judgment in favour of the defence in their pleaded defence of honest comment.
Held: Laws LJ said: ‘The . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
Cited – O’Farrell v O’Farrell QBD 1-Feb-2012
Applications were made for the enforcement of order obtained in Germany in family proceedings between the parties.
Held: The court re-emphasised the duty on those seeking ex parte orders to give notice, informal if necessary, to the other . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Torts – Other

Updated: 07 October 2022; Ref: scu.452710

British Eagle International Airlines Ltd v Compagnie National Air France: CA 1974

Judges:

Russell LJ

Citations:

[1974] 1 Lloyd’s Rep 429

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Eagle International Airlines Ltd v Compagnie National Air France HL 1975
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 . .
Mentioned – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 October 2022; Ref: scu.442608

in Re Resinoid and Mica Products Ltd: CA 1967

(From 1967) An order extending time for registration of a charge will not normally be made after a company has gone into liquidation.

Citations:

[1982] 3 All ER 677

Jurisdiction:

England and Wales

Cited by:

Cited – Victoria Housing Estates Ltd v Ashpurton Estates Ltd CA 1982
Although the Court has jurisdiction to extend the time for registration of a charge, its settled practice is not to do so when the company that granted the charge has already entered into liquidation. An application to extend the time for . .
Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.444532

In re Ehrmann Brothers Ltd: CA 1906

Debentures had been issued after 1 January 1901 secured by a floating charge. It was was not registered in time. The judge had permitted registration, with a proviso as contained in In re I C Johnson, and registration was completed. A compulsory winding up petition was then filed, and the company then itself resolved to wind up. Buckley J allowed the petitioning creditor to take part in an inquiry as to the priorities between the debenture holder and the unsecured creditors. In that inquiry, Joyce J gave the unsecured creditors equal priority with the registered debenture holders.
Held: The debenture holder’s appeal succeeded, though the intervention of winding up before registration created rights in all the unsecured creditors protected by the proviso.
Vaughan Williams LJ said that the registration (pursuant to the extension) meant that the debentures were ‘no longer void’, limiting the protective effect of the proviso to those who had acquired rights of, or against, the property the subject of the charge prior to registration. He said that Buckley J had expressed the matter too widely in In re Joplin Brewery if he had intended that the proviso protect unsecured creditors generally. He then referred to the dictum of Cozens-Hardy LJ in In re I C Johnson and made clear his view as to the effect of winding up: ‘Of course, that does not mean only creditors who individually have so done, [that is as Cozens-Hardy LJ in In re I C Johnson said: taken some proceedings to get a charge or security], but creditors who come within the operation and benefit of an order for winding-up giving the creditors a right to have such property administered for their benefit. That is the conclusion which I have come to in this case. I think that the intention of the Legislature, as appears by the statute itself, was, in a case where the omission to register was accidental and the extension of time was a just thing to grant, to place the debenture-holders in the same position as they would have been in if they had registered in due time. But of course the Legislature had to make provision for the rights of those who had obtained rights which existed at the time when the order for the extension of time was made. I do not think that the Legislature meant by that that an unsecured creditor, merely because he was an unsecured creditor at the time the extension order was made, should be allowed to say, ‘So far as I am concerned, that debenture which was not registered in due time, but which was registered under the order for extension, is a void debenture.’

Judges:

Vaughan Williams, Romer and Cozens-Hardy LJJ

Citations:

[1906] 2 Ch 697

Jurisdiction:

England and Wales

Citing:

Cited – Re Joplin Brewery Co Ltd ChD 1902
The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out . .

Cited by:

Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 07 October 2022; Ref: scu.444535

Re Garrud, Ex parte Newitt: CA 1881

A building contract provided for forfeiture on the tenant’s breach and not on bankruptcy. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the landowner ‘as and for liquidated damages’.
Held: The provision was valid. Where an owner continued to make advances after the failure of a building contractor to complete on a particular day, that amounted to a waiver of his contractual right of forfeiture.
James LJ said: ‘Another point taken before us, which does not appear to have been really argued before the judge of the county court, was this – that the seizure was not made in sufficient time, that it was not made before the filing of the liquidation petition. To my mind it is immaterial at what particular moment the seizure was made. The broad general principle is that the trustee in a bankruptcy takes all the bankrupt’s property, but takes it subject to all the liabilities which affected it in the bankrupt’s hands, unless the property which he takes as the legal personal representative of the bankrupt is added to by some express provision of the bankrupt law. There is no such provision applicable to the present case. The building agreement provides, in effect, that in a certain event certain property of the builder may be taken by the landowner in full satisfaction of the agreement. It appears to me analogous to a sale of property with a power of repurchase in a certain event.’

Judges:

Brett, James LJJ

Citations:

(1881) 16 Ch D 52

Jurisdiction:

England and Wales

Cited by:

Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 October 2022; Ref: scu.442614

In re I C Johnson: CA 1 May 1902

Kekewich J had permitted the late registration of a company debenture, but included the proviso introduced by Buckley J in In re Joplin Brewery. There were pari passu debentures, some issued before 1 January 1901, some after. The company was solvent. The post 1901 unregistered debenture holders appealed, seeking a better position different to that brought about by Buckley J’s decision in In re S Abrahams (also with pari passu debentures issued before and after 1 January 1901).
Held: The appeal succeeded. The Court drew a qualification to the In re Joplin Brewery condition which excluded the earlier issued debentures from its effect, so as to maintain ranking pari passu status between the contractually equal debentures. Cozens-Hardy LJ added a rider to his reasons in which he doubted whether the proviso as drafted by Buckley J in In re Joplin Brewery would ever have any effect in protecting unsecured creditors: ‘who had not taken some proceedings to get a charge or a security upon the goods.’

Judges:

Cozens-Hardy LJ

Citations:

[1902] 2 Ch 101

Jurisdiction:

England and Wales

Citing:

Qualified – Re Joplin Brewery Co Ltd ChD 1902
The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.444536

Stonegate Securities Ltd v Gregory: CA 1980

The practice of the Companies Court is to dismiss a creditor’s petition based on a debt which is disputed by the company in good faith and on substantial grounds. Buckley LJ said: ‘If the Company in good faith and on substantial grounds disputes any liability in respect of the alleged debt, the petition will be dismissed, or if the matter is brought before a court before the petition is issued, its presentation will in normal circumstances be restrained. That is because a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed.’

Judges:

Buckley LJ

Citations:

[1980] Ch 576

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.396765

London Borough of Camden Council and Another v Saint Benedict’s Land Trust Ltd: ChD 6 Dec 2019

Judges:

Snowden J

Citations:

[2019] EWHC 3370 (Ch), [2019] WLR(D) 689

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

See Also – London Borough of Camden Council and Another v Saint Benedict’S Land Trust Ltd ChD 20-Dec-2019
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 06 October 2022; Ref: scu.646201

BTI 2014 Llc v Sequana SA and Others: CA 6 Feb 2019

The Court considered a Director’s duty to act in the interests of his company’s creditors. The Directors were said to have paid out an excessive dividend to put assets beyond the reach of its creditors.

Judges:

Longmore, David Richards, Henderson LJJ

Citations:

[2019] EWCA Civ 112, [2019] 2 All ER (Comm) 13, [2019] BCC 631, [2019] 2 All ER 784, [2019] WLR(D) 68, [2019] BPIR 562, [2019] 1 BCLC 347, [2019] Bus LR 2178

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 423, Companies Act 2006 172(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – BTI 2014 LLC v Sequana SA and others SC 5-Oct-2022
Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 06 October 2022; Ref: scu.633097

West Mercia Safetywear Ltd v Dodds: CA 1988

If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of insolvency, even a written consent will not totally safeguard against a claim from a liquidator.

Judges:

Dillon LJ, Croom-Johnson LJ and Caulfield J

Citations:

[1988] BCLC 250, [1988] BCC 30

Jurisdiction:

England and Wales

Citing:

Approved – Kinsela v Russell Kinsela Pty Ltd (In Liq) 1986
(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of . .

Cited by:

Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – BTI 2014 LLC v Sequana SA and others SC 5-Oct-2022
Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Leading Case

Updated: 06 October 2022; Ref: scu.188615

Byford v Butler; In re Byford deceased: ChD 10 Jun 2003

The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the trustee claimed an occupation rent.
Held: The wife’s interest should be calculated to allow for an occupation rent. The court should look to do justice according to the situation. The trustee had no opportuinty to occupy the property for the financial benefit of the creditors, and so fell within the class of joint owners excluded from the property. The absence of an ouster order was not conclusive against him.

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 1267 (Ch), Times 13-Jun-2003, Gazette 19-Jun-2003, Gazette 14-Aug-2003, [2004] 1 FLR 56, [2004] Fam Law 14, [2003] BPIR 1089, [2004] 2 FCR 454, [2004] 1 P and CR 12

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .
Cited – in Re Pavlou (A Bankrupt) ChD 17-Mar-1993
Mr and Mrs Pavlou bought a house for andpound;12,500 with a mortgage of andpound;9,500. After the husband left, the wife remained in sole occupation, and paid the mortgage instalments as they fell due. Thirteen years after the marriage Mrs Pavlou . .
Cited – Leigh v Dickeson 1884
The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an . .
Cited – Leake (formerly Bruzzi) v Bruzzi CA 1974
The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments . .
Cited – Suttill v Graham CA 1977
The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which . .
Cited – M’Mahon v Burchell CA 1846
Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
Cited – Dennis v McDonald CA 1982
The plaintiff and defendant had lived together in a house held in their joint names. The woman left the home as a result of the man’s violence, and he kept up the mortgage payments.
Held: If in order to do equity between the parties an . .

Cited by:

Cited – Murphy v Gooch CA 27-Jun-2007
The unmarried parties had sought an order from the court as to their respective interests in their former family home.
Held:The judge had been incorrect to make his decsion based on the principles of equitable accounting. He should have used . .
Cited – Stonham v Ramrattan and Another CA 16-Feb-2011
The bankrupt, while solvent had acquired a property which was first put in his own sole name, but then transferred to his wife outwardly ‘in consideration of love and affection’. Several years later, on the bankruptcy, the trustee sought to have the . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 05 October 2022; Ref: scu.183710

Lehman Brothers International (Europe), Re: SC 29 Feb 2012

The court was asked to interpret the provisions as to ‘client money rules’ and ‘client money distribution rules’ in the FSA handbook, and to consider the consequences as to the applicable trusts. Substantial sums paid by clients to the bank before its insolvency were now unavailable.
Held: The appeal failed. The statutory trust under the scheme arose on receipt of client money, and not on its later segregation; the primary pooling arrangements applied to client money in house accounts; and, participation in the CMP was not dependant on the segregation of client money.

Judges:

Lord Hope, Deputy President, Lord Walker, Lord Clarke, Lord Dyson, Lord Collins

Citations:

[2012] UKSC 6, UKSC 2010/0194, [2012] 3 All ER 1, [2012] 1 BCLC 487, [2012] WLR(D) 53, [2012] Bus LR 667

Links:

Bailii, Bailii Summary, SC C Summ, SC

Statutes:

Insolvency Act 1986, Markets in Financial Instruments Directive 2004/39/EC

Jurisdiction:

England and Wales

Citing:

At first instance – Lehman Brothers International (Europe) v CRC Credit Fund Ltd and Others ChD 15-Dec-2009
. .
See Also – Lehman Brothers International (Europe) v CRC Credit Fund Ltd and Others ChD 20-Jan-2010
. .
Appeal From – CRC Credit Fund Ltd and Others v GLG Investments Plc (Sub-Fund: European Equity Fund) and Others CA 2-Aug-2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services

Updated: 05 October 2022; Ref: scu.451702

Blodel-Pawlik v HanseMerkur Reiseversicherung AG: ECJ 16 Feb 2012

ECJ Directive 90/314/EEC – Package travel, package holidays and package tours – Article 7 – Protection against the risk of insolvency or bankruptcy on the part of the package organiser – Scope – Insolvency of the organiser on account of its fraudulent use of the funds transferred by consumers

Judges:

Safjan P

Citations:

C-134/11, [2012] EUECJ C-134/11

Links:

Bailii

Statutes:

Directive 90/314/EEC

European, Insolvency

Updated: 05 October 2022; Ref: scu.451689

Rawnsley and Another v Weatherall Green and Smith North Ltd: ChD 30 Sep 2009

Applications by the Defendants for summary judgment and/or to strike out the claims in two consolidated actions in effect brought by Mr Rawnsley the principal director of and a major shareholder in Canal Dyeing Company Limited.

Judges:

Behrens J

Citations:

[2009] EWHC 2482 (Ch), [2010] PNLR 6

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Professional Negligence

Updated: 04 October 2022; Ref: scu.377323

Hurst v Bennett and others: CA 8 Oct 2001

A statutory demand served on Mr Hurst in relation to an indemnity on partners to trustees of the lease would not be set aside because of Mr Hurst’s claims against the partnership. It was because this claim was against the partners in their capacity as such, and their claim was advanced in their capacity as trustees. Mr Hurst owed money to four trustees who held a lease for themselves, Mr Hurst and fifteen other former partners. The trustees’ statutory demand was not subject to Mr Hurst’s cross-demand against his nineteen other former partners. The amount due to the four trustees was due to them personally whereas any amount due to Mr Hurst was due to him from all the other partners jointly. Where a debt constitutes a trust obligation there can be no set off against that amount for want of mutuality.

Judges:

Arden LJ

Citations:

[2001] 2 BCLC 290, [2001] EWCA Civ 1398, [2002] BPIR 102

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 04 October 2022; Ref: scu.218427

In re The Salvage Association: ChD 9 May 2003

The company wished to enter into a voluntary arrangement to protect itself from insolvency, but was an association incorporated by Royal Charter.
Held: For the purposes of the Act, the association was to be treated as having a legal persona capable of being wound up. The words ‘opening’ insolvency proceedings could be read widely enough to include a creditors meeting under a proposed voluntary arrangement. Although the regulations did explicitly not apply to English companies it would be perverse to exclude the jurisdiction.

Judges:

Blackurn J

Citations:

Times 21-May-2003, Gazette 19-Jun-2003, [2003] EWHC 1028 (Ch), [2004] 1 WLR 174

Links:

Bailii

Statutes:

Insolvency Act 1985 8(7), Council Regulation (EC) 1346/2000 on insolvency proceedings

Jurisdiction:

England and Wales

Citing:

Cited – Brac Rent-A-Car International Inc ChD 7-Feb-2003
The company was incorporated in Delaware. Its main centre of business was within the UK. The company resisted an attempt to wind the company up here.
Held: The English courts had jurisdiction. The company’s contracts were subject to English . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 04 October 2022; Ref: scu.182424

Quicksons (South and West) Limited v Katz, Kelmanson: ChD 8 Aug 2003

Application had been made for the removal of the liquidators, who sought security for their costs of defending the application. They said that the company had made several substantial payments to reduce borrowings in the time shortly before the liquidation, increasing unsecured creditors and reducing the secured creditor liabilities. The claimants said the liquidation had been drawn out with unnecessarily fees incurred.
Held: In the absence of any authority on the correct approach to be followed, the court felt it proper to apply a merits based approach rather than a security based approach. The application for security for costs was rejected.

Judges:

The Hon Mr Justice Evans-Lombe

Citations:

[2003] EWHC 1981 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 108(2)

Jurisdiction:

England and Wales

Insolvency

Updated: 04 October 2022; Ref: scu.185456

Regina v Bevis: CACD 8 Feb 2001

A distinction has to be made in between sections 208 and 213 of the Act. Section 208 implies an element of dishonesty, rather than an intent to defraud. The difference lay in the absence of a requirement to establish that the defendant to intended to benefit himself. Though his offence was not technical, and it struck at a lot of company law and the winding up and liquidation processes, it was distinct from fraudulent trading. A custodial sentence was proper, but his previous good character suggested a reduced sentence of nine months imprisonment and a reduction in disqualification to two years.

Citations:

Times 08-Feb-2001

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Criminal Sentencing, Insolvency

Updated: 04 October 2022; Ref: scu.88384

Interedil Srl, in liquidation v Fallimento Interedil Srl, Intesa Gestione Crediti SpA: ECJ 20 Oct 2011

interedill2ECJ2011

ECJ Reference for a preliminary ruling – Whether a lower court has the power to refer a question to the Court for a preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – The centre of a debtor’s main interests – Transfer of a registered office to another Member State – Concept of establishment
‘By the second part of Question 3, the Tribunale di Bari asks, in essence, how the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted.
Article 2(h) of the Regulation defines the term ‘establishment’ as designating any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.
The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required. It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an ‘establishment’.
Since, in accordance with Article 3(2) of the Regulation, the presence of an establishment in the territory of a Member State confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
The answer to the second part of Question 3 is therefore that the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition.’

Judges:

President of Chamber A Tizzano

Citations:

[2011] EUECJ C-396/09, [2011] WLR (D) 334, [2012] BCC 851, [2012] Bus LR 1582, [2011] ECR I-9915, [2011] BPIR 1639

Links:

Bailii, Bailii, WLRD

Statutes:

Regulation (EC) No 1346/2000

Citing:

Opinion – Interedil ECJ 10-Mar-2011
ECJ Opinin – Preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – Article 3, paragraph 1 of Regulation No. 1346/2000 – Centre of main interests of the debtor – . .

Cited by:

Cited – Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .
Cited – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Cited – Olympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .
Lists of cited by and citing cases may be incomplete.

European, Insolvency

Updated: 04 October 2022; Ref: scu.451141

Mayhew v King and Others: ChD 20 May 2010

The court was asked to make a declaration which turned on the interpretation of the ‘anti-deprivation’ rule and its application to a settlement agreement: ‘Milbank is insolvent and has had an administration order made against it. Chaucer seeks an order of the court that certain provisions of the Settlement Agreement be struck down under the Principle so that amounts due to Milbank from Towergate under that agreement, and which have been assigned to Chaucer, are recoverable by Chaucer which otherwise they would not have been.’

Judges:

Sir Edward Evans-Lombe

Citations:

[2010] EWHC 1121 (Ch), [2010] 2 BCLC 440, [2010] BPIR 1155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Insolvency

Updated: 04 October 2022; Ref: scu.415979

Parke v The Fenton Gretton Partnership: ChD 2 Aug 2000

The defendant creditor had obtained an adjudicator’s decision against the debtor on its final account claim, but the debtor had little notice of the adjudication. At the application to set aside the statutory demand, Mr Parke had already commenced proceedings in the TCC arguing that the true final account showed a balance payable in his favour, but the District Judge was not made aware of this fact.
Held: This factor of the counterclaim allowed the court to look at the matter afresh. Although the adjudication created a debt which failed to be treated in the same way as a judgement, nonetheless Mr Parke had a valid cross claim. Responding to an argument that to allow Mr Parke to rely on the cross claim would be contrary to the scheme of the 1996 Act, the Judge said: ‘In my judgment it cannot be right that an employer or main contractor can be made bankrupt when it is known that he has proper proceedings on foot which, if successful, will result in a payment to him. I do not accept that the scheme of the 1996 Act is that an adjudication can be pursued to bankruptcy no matter the underlying state of account. The court would be required to close its eyes to the overall position, which in the context of bankruptcy is in my judgment wrong in principle.’ A bankruptcy court should not allow the winning party in a construction arbitration to bring insolvency proceedings against the losing party where there was a genuine cross-claim.

Judges:

HHJ Boggis QC

Citations:

Unreported, 2 August 2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Cited by:

Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 October 2022; Ref: scu.392550

Daltel Europe Ltd (In Liquidation) and Others v Hassan Ali Makki: ChD 17 Jun 2004

Judges:

Lloyd J

Citations:

[2004] EWHC 1631 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Daltel Europe Ltd and others v Makki and others ChD 3-May-2005
Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number . .
See Also – Daltel Europe Ltd and others v Makki and others ChD 21-Oct-2005
. .
See Also – Daltel Europe Ltd and others v Makki and others CA 28-Feb-2006
The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 October 2022; Ref: scu.392846

Shaw and Another v MFP Foundations and Piling Ltd: ChD 6 Jan 2010

The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The judge’s discretion had been wrongly exercised, and the court had to reconsider the case.

Judges:

Stephen Davies J

Citations:

[2010] EWHC 9 (Ch), [2010] CILL 2831, [2010] 3 EG 102, [2010] BPIR 397, [2010] 1 EGLR 1, [2010] 11 EG 122, [2010] 2 BCLC 85

Links:

Bailii

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Parke v The Fenton Gretton Partnership ChD 2-Aug-2000
The defendant creditor had obtained an adjudicator’s decision against the debtor on its final account claim, but the debtor had little notice of the adjudication. At the application to set aside the statutory demand, Mr Parke had already commenced . .
Cited – AEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Cited – Guardi Shoes Ltd v Datum Contracts 28-Oct-2002
. .
Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 October 2022; Ref: scu.392548