Category: Insolvency

Revenue and Customs v Chamberlin: CA 22 Mar 2011

The claimant argued that she should not have been made bankrupt on the application of HMRC in respect of VAT sums she now disputed.

Judges:

Sir Andrew Morritt C, Toulson, Sullivan LJJ

Citations:

[2011] EWCA Civ 271, [2011] BPIR 691, [2011] STC 1237, [2011] STI 1213, [2011] BVC 162, [2011] NPC 33

Links:

Bailii

Statutes:

Insolvency Act 1986 282(1)(a)

Jurisdiction:

England and Wales

Insolvency

Updated: 04 September 2022; Ref: scu.430737

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 – Presumption in favor of the place the registered office – Transfer of registered office in another Member State – Article 3, paragraph 2, h) of Regulation No 1346/2000 – Concept’etablissement ‘- Authority to a national court ruling does not last proceeding to apply to the Court.

Judges:

Kokott AG

Citations:

C-396/09, [2011] EUECJ C-396/09

Links:

Bailii

Statutes:

Regulation (EC) No 1346/2000

Jurisdiction:

European

Cited by:

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

Insolvency

Updated: 04 September 2022; Ref: scu.430713

BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL Plc and Others: CA 7 Mar 2011

The court was asked questions to interpret the terms of interest-bearing notes, which were issued by Eurosail-UK 2007-3BL PLC, a special purpose vehicle formed to hold income-producing assets, consisting of mortgage loans, to be used to meet the liabilities on the Notes, and in particular whether the rspondent had been insolvent when entering into them.
Held: The appeal and cross failed. The meaning to be given to the language used by the parties was not open to doubt. To say that to give effect to that meaning is to surrender to legal form over commercial substance amounts to an invitation to depart from the settled role of commercial good sense.

Judges:

Lord Neuberger MR

Citations:

[2011] BCC 399, [2011] Bus LR 1359, [2011] 1 WLR 2524, [2011] EWCA Civ 227

Links:

Bailii

Statutes:

Insolvency Act 1986 123

Jurisdiction:

England and Wales

Citing:

Appeal from – BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL Plc and Others ChD 30-Jul-2010
The parties disputed whether the respondent was in law insolvent at the time it entered into financial transactions with it.
Held: The Court rejected the Noteholders’ submission that Eurosail was plainly insolvent for the purposes of section . .

Cited by:

Appeal from – BNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Insolvency

Updated: 03 September 2022; Ref: scu.430359

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 transaction set aside. The bankrupt, now discharged, said that in fact the original transfer to his name had been by mistake, and that the wife had paid all the purchase monies. The transfer had been found to be a forgery and a sham of no legal effect. The former bankrupt now sought to rely on the new provisions requiring a trustee’s claim to be brought within three years.
Held: The former bankrupt’s appeal failed. Under section 283A(2), in order that the interest should vest in the bankrupt, it must first be comprised in the bankrupt’s estate. Sub-section (3) provides a clear indication that the interest of which sub-section (1) speaks is an interest which is at the relevant time comprised in the estate of the bankrupt, and does not include a possible claim to recover such an interest for the benefit of the creditors whether under section 339 or under any other equivalent provision.

Judges:

Rix, Longmore, Lloyd LLJ

Citations:

[2011] EWCA Civ 119, [2011] BPIR 518, [2011] 8 EG 118, [2011] 1 WLR 1617, [2011] NPC 19

Links:

Bailii

Statutes:

Insolvency Act 1986 283A, Limitation Act of 1980 8

Jurisdiction:

England and Wales

Citing:

Cited – Re Yates (A Bankrupt) 2004
The court considered the application of the limitation to a claim by a trustee in bankruptcy to set aside a transaction at an undervalue.
Held: Charles J: ‘If there is a limitation period, the passages in Muir Hunter suggest that in the case . .
Cited – Lewis and Another v Metropolitan Property Realisations Ltd CA 12-Jun-2009
The bankrupts appealed against the refusal of a declaration that their home was now free of the claims of the defendants who had taken an assignment from the trustee in bankruptcy of the trustee’s interest in the house for a consideration of a share . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insolvency

Updated: 02 September 2022; Ref: scu.429630

CRC Credit Fund Ltd and Others v GLG Investments Plc (Sub-Fund: European Equity Fund) and Others: CA 2 Aug 2010

Judges:

Lord Neuberger MR, Arden LJ, Sir Mark Waller

Citations:

[2010] EWCA Civ 917, [2011] Bus LR 277, [2011] 1 CMLR 27

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000

Jurisdiction:

England and Wales

Citing:

Appeal from – 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
. .

Cited by:

Appeal From – 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 . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Insolvency

Updated: 02 September 2022; Ref: scu.421333

Mills and Others v HSBC Trustee (CI) Ltd and Others: ChD 18 Dec 2009

Judges:

Sir Robert Andrew Morritt C

Citations:

[2009] EWHC 3377 (Ch), [2010] WTLR 235

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

See Also – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 02 September 2022; Ref: scu.384448

Ross and Holmes v HM Revenue and Customs: ChD 12 Jan 2010

The claimants appealed against bankruptcy orders made against assessed liability to income tax and penalties. As solicitors, their practice had suffered intervention, but they argued that their assets comfortably exceeded their liabilities and that they should have been given more time to pay.
Held: They said that as a result of the intervention within their practice, there would be a substantial tax reclaim which would effectively discharge most of the debt and that they could pay the rest. Henderson J said: ‘There is no doubt that the court retains a discretion not to make a bankruptcy order, even where the petition debt has been clearly established and any grounds of opposition have been dismissed. However, the authorities establish that in such circumstances the discretion to adjourn should only be exercised if there is a reasonable prospect of the petition debt being paid in full within a reasonable period: see Harrison v. Segger [2005] EWHC 411 (Ch), [2005] BPIR 583 per Blackburne J, and Re Gilmartin (a bankrupt), ex p bankrupt v. International Agency and Supply Ltd [1989] 2 All ER 835, [1989] 1 WLR 513 per Harman J. Furthermore, as Blackburne J said, ‘[t]here must be credible evidence to support such a prospect if the court is to grant an adjournment for payment.’

Judges:

Henderson J

Citations:

[2010] EWHC 13 (Ch), [2010] 2 All ER 126, [2010] STC 657, [2010] STI 230

Links:

Bailii

Statutes:

Insolvency Act 1986 271(30

Jurisdiction:

England and Wales

Insolvency, Income Tax

Updated: 01 September 2022; Ref: scu.392844

Ross v Stonewood Securities Ltd: ChD 7 Oct 2004

The claimant appealed an order reducing his award of costs.

Judges:

The Honourable Mr Justice Lewison

Citations:

[2004] EWHC 2235 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Home Office v Lownds (Practice Note) CA 21-Mar-2002
The respondent had been ordered to pay costs of over pounds 16,000 in an action for clinical negligence where the final award was only pounds 4,000. The Secretary of State appealed claiming that the costs were disproportionate.
Held: In such . .
Cited – Giambrone and others v Sunworld Holidays Ltd CA 18-Feb-2004
Many holidaymakers had suffered gastro-enteritis and sued for compensation. They had sought a sum to reflect the value of gratuitous care.
Held: Save in more serious cases, awards for children suffering gastro-enteritis and cared for by their . .
Cited – Ortwein v Rugby Mansions Ltd 2004
. .
Cited – Giambrone and others v JMC Holidays Ltd (Formerly Sunworld Holidays Ltd) QBD 20-Dec-2002
. .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 01 September 2022; Ref: scu.216004

The Commissioners of the Inland Revenue v Wimbledon Football Club Ltd and Others: ChD 11 May 2004

Judges:

The Hon Mr Justice Lightman

Citations:

[2004] EWHC 1020 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed to – Commissioners of Inland Revenue v The Wimbledon Football Club Limited, Ellis, Earp CA 28-May-2004
The Commissioners appealed against a refusal of their application for a revocation of the defendant’s voluntary arrangement in that it had failed to comply with section 4. They complained that the arrangement was unfair to them. It had been agreed . .

Cited by:

Appeal from – Commissioners of Inland Revenue v The Wimbledon Football Club Limited, Ellis, Earp CA 28-May-2004
The Commissioners appealed against a refusal of their application for a revocation of the defendant’s voluntary arrangement in that it had failed to comply with section 4. They complained that the arrangement was unfair to them. It had been agreed . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 01 September 2022; Ref: scu.196700

Mountney v Treharne: CA 8 Aug 2002

In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been transferred.
Held: Upon the order taking effect (upon the decree absolute), the wife acquired an equitable interest in the property, and the trustee in bankruptcy took subject to that interest. The ratio in Maclurcan was directly applicable and binding, though the correctness of that decision was doubted. It is the order of the court exercising the matrimonial jurisdiction which effects the transfer of the beneficial interest not the subsequent disposition made by or on behalf of the individual who later becomes bankrupt.

Judges:

Lord Justice Aldous, Lord Justice Laws and Lord Justice Jonathan Parker

Citations:

Times 09-Sep-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1174, [2003] Ch 135, [2002] Fam Law 809, [2002] 3 WLR 1760, [2002] 3 FCR 97, [2002] BPIR 1126, [2002] 2 FLR 930

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(a), Insolvency Act 1986 283(5)

Jurisdiction:

England and Wales

Citing:

Doubted – Maclurcan v Maclurcan CA 1897
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report . .

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Equity

Updated: 01 September 2022; Ref: scu.174820

Wallace v Wallace: ChD 25 Sep 2019

‘The present Application raises an interesting question about the scope of section 236 of the Insolvency Act 1986 (‘IA’). This has been described as the question whether the section has extraterritorial effect. More particularly, the question is whether an Order may be made under the section directed to a Respondent resident abroad, in this case in the Republic of Ireland. ‘

Judges:

Adam Johnson QC

Citations:

[2019] EWHC 2503 (Ch), [2019] WLR(D) 527

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Insolvency

Updated: 31 August 2022; Ref: scu.642634

Secretary of State for Work and Pensions v Payne and Another: CA 14 Dec 2010

Appeal by Secretary of State against judicial review finding unlawful the deductions made from the claimants’ social security benefit allowances after the claimants Debt Relief Order had come to an end.
Held: The appeal failed.

Judges:

Mummery, Smith, Toulson LJJ

Citations:

[2010] EWCA Civ 1431, [2011] BPIR 223, [2011] 1 WLR 1723, [2011] PTSR 912

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Payne and Another, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 26-Jul-2010
The court was asked as to the lawfulness of the Secretary of State making deductions from ongoing social security benefit to recover the overpayment of incapacity benefit and the repayment of a social fund budgeting loan during the moratorium period . .

Cited by:

Appeal from – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Benefits, Insolvency

Updated: 29 August 2022; Ref: scu.427270

Mazur Media Limited and Another v Mazur Media Gmbh in Others: ChD 8 Jul 2004

Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to order a stay of proceedings here. (a) the English court has jurisdiction to determine Apex’s claim for damages and for delivery up against Mrs Mazur under the Share Sale Agreement; (b) it will also have jurisdiction to determine Mazur Ltd’s claim against Mazur GmbH to title to the Masters under the Assignment and for delivery up, subject to the determination of the issue as to whether Mazur Ltd has an arguable case for a term to be implied by business efficacy principles or by custom; (c) there is no substantive or jurisdictional basis for Apex’s claim for a declaration that it has title to the Masters; (d) the court does not have jurisdiction over the tortious claims against any of the Defendants, nor over the claims against them (other than Mrs Mazur) for delivery up; and (e) there will be no stay in relation to those claims against Mazur GmbH over which the English court has jurisdiction.

Judges:

The Honourable Mr Justice Collins

Citations:

[2004] EWHC 1566 (Ch), Times 29-Jul-2004, [2005] 1 Lloyd’s Rep 41, [2004] 1 WLR 2966

Links:

Bailii

Statutes:

Council Regulation (EC) No. 44/2001, Insolvency Act 1986 130(2)

Jurisdiction:

England and Wales

Citing:

Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .
Cited – Marinari v Lloyd’s Bank ECJ 19-Sep-1995
A ‘harmful event’ occurred where the physical damage was suffered and not at the time and place of a later financial loss.
Europa The term ‘place where the harmful event occurred’ in Article 5(3) of the . .
Cited – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
Cited – Reichert and Kockler v Dresdner Bank ECJ 26-Mar-1992
The case concerned article 16(5) of the Brussels Convention, among other articles.
Held: It is necessary to take account of the fact that the essential purpose of the exclusive jurisdiction of the courts of the place in which the judgment has . .
Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Cited – Reunion Europeenne Sa and Others v Spliethoff’s Bevrachtingskantoor Bv and Another ECJ 27-Oct-1998
French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Cited – Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA ECJ 30-Nov-1976
Europa A discharge into the French part of the Rhine of saline waste caused alleged damage to the horticultural business of the first plaintiff, and to the waters of the Rhine in general in the Netherlands.
Cited – Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA ECJ 7-Mar-1995
On a proper construction of the expression ‘place where the harmful event occurred’ in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters as amended by the Convention . .
Cited – Dumez France SA and Tracoba SARL v Hessische Landesbank and others ECJ 11-Jan-1990
ECJ The expression ‘place where the harmful event occurred’ contained in Article 5(3 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters may . .
Cited – International Factors v Rodriguez CA 1978
(Majority) Cheques were made payable to a company which had entered into a factoring agreement with the plaintiffs. The cheques were sent to the company in settlement of debts owed to the company but which had been assigned to the plaintiffs. The . .
Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Cited – MCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe) CA 19-Dec-1997
The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights . .
Cited – Domicrest Ltd v Swiss Bank Corporation QBD 7-Jul-1998
An English claimant sued a Swiss bank for a negligent mis-statement made in a telephone call between England and Switzerland. The Swiss banker represented that the transmission of a copy payment order by the bank to the claimant was a guarantee that . .
Cited – Banque Indosuez v Ferromet Resources 1993
There is a general principle in favour of giving judicial assistance to foreign insolvency proceedings by preventing their disruption by the actions of individual creditors. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency, European

Updated: 29 August 2022; Ref: scu.198600

Winsor v Bloom and Others; In re Railtrack plc (in railway administration): CA 10 Jul 2002

The claimant, the Rail regulator appealed a decision that he had to apply to court for directions under the 1986 Act before allowing other rail operators access to the track after the company had gone into railway administration.
Held: Section 17 of the 1993 Act was sufficient to allow the regulator to make such an order without first approaching the court. In exercising the power the regulator had to have regard to the interests of others which would not be reflected in insolvency proceedings, and the importance of that role overrode if necessary the interests in the company.

Judges:

Lord Woolf, Lord Chief Justice, Lord Justice Waller and Lord Justice Robert Walker

Citations:

Times 15-Jul-2002, Gazette 12-Sep-2002, [2002] EWCA Civ 955, [2002] 1 WLR 3002, [2002] 4 All ER 435, [2002] 2 BCLC 755

Links:

Bailii

Statutes:

Railways Act 1993 17, Insolvency Act 1986 11(3)(d)

Jurisdiction:

England and Wales

Utilities, Administrative, Insolvency

Updated: 29 August 2022; Ref: scu.174325

McNulty v Revenue and Customs: FTTTx 21 Oct 2010

FTTTx Application by HMRC for notice of appeal by taxpayer to be struck because assessment agreed and disposed of by taxpayer’s trustee in bankruptcy under s.54 TMA 1970 – HMRC claim taxpayer had no locus standi to appeal – agreement under s.54 disputed by taxpayer – application to strike out upheld.

Citations:

[2010] UKFTT 509 (TC)

Links:

Bailii

Taxes Management, Insolvency

Updated: 28 August 2022; Ref: scu.426630

McGuinness v Norwich and Peterborough Building Society: ChD 23 Nov 2010

The claimant appealed against his bankruptcy saying that it had followed as statutory demand based upon his alleged default under a guarantee of his brothers mortgage borrowings. He said that such a claim was not a liquidated sum within the 1986 Act.
Held: The appeal failed.

Judges:

Briggs J

Citations:

[2010] NPC 116, [2011] BPIR 213, [2011] 1 WLR 613, [2011] 1 All ER (Comm) 334, [2010] EWHC 2989 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 267(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .

Cited by:

Appeal from – McGuinness v Norwich and Peterborough Building Society CA 9-Nov-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 August 2022; Ref: scu.426470

Singla v Hedman and Others: ChD 27 Nov 2009

Judges:

Kitchin J

Citations:

[2009] EWHC 3510 (Ch), [2010] BCC 674

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

See Also – Singla v Hedman and Others ChD 28-Apr-2010
The claimant sought an order for wrongful trading against the former directors of a company in liquidation, and to set aside agreements entered into after the liquidation, but backdated to before. The agreements related to the proposed making of a . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 August 2022; Ref: scu.401893

Starglade Properties Ltd v Nash: CA 19 Nov 2010

It is ultimately for the court to decide, as it must in the case of the standard of honesty to be expected in dealing of businessmen and trustees, whether or not conduct amounts to cheating. The standard is objective.
Leveson LJ identified the different tests used in civil and criminal cases, and took the view that a review was called for.

Judges:

Hughes, Leveson LJJ

Citations:

[2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Starglade Properties Ltd v Nash and Others ChD 26-Jan-2010
. .

Cited by:

Cited – Ivey v Genting Casinos UK Ltd (T/A Crockfords Club) QBD 8-Oct-2014
The claimant, a professional gambler, sued the defendant casino for his winnings. The club replied that the claimant’s methods amounted to a form of cheating, and that no liability arose to pay the winnings.
Held: The claim failed. ‘The fact . .
Cited – Ivey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 26 August 2022; Ref: scu.426038

Power and Another v HM Revenue and Customs and Another: ChD 23 Oct 2009

The company had collected savings from consumers toward ‘christmas packs’. It went into liquidation. The revenue asserted claims for unsecured creditors saying that no trust had been created in favour of the savers.
Held: No Quistclose type trust was created on payment to the company’s agent. The court considered the classes of creditors and the payments to be made to them.

Judges:

Warren J

Citations:

[2009] EWHC 2580 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 26 August 2022; Ref: scu.377219

Taylor and Another v Sir Thomas Plumer: KBD 10 Feb 1815

Sir Thomas Plumer gave a bank draft to a stockbroker for the purpose of buying exchequer bills, and the stockbroker instead used the draft for buying American securities and doubloons for his own purposes.
Held: Sir Thomas was able to trace his property into the securities and doubloons in the hands of the stockbroker, and so defeat a claim made to them by the stockbroker’s assignees in bankruptcy.

Judges:

Lord Ellenborough CJ

Citations:

[1815] EWHC KB J84, (1815) 3 M and S 562

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 26 August 2022; Ref: scu.248379

Neville (As Administrator of Unigreg Ltd) and Another v Krikorian and others: CA 4 Jul 2006

The liquidator appealed refusal of the court to make liable one director who had unknowingly allowed company funds to be loaned unlawfully to a co-director.
Held: The section imposed liability on one director for unlawful arrangements made by another. ‘If annual accounts are approved which do not comply with the requirements of the Act, every director of the company who is party to their approval and who knows that they do not comply or is reckless as to whether they comply is guilty of an offence; and, for that purpose, every director of the company at the time that the accounts are approved shall be taken to be a party to their approval unless he shows that he took all reasonable steps to prevent their being approved’. Where an arrangement or transaction is made by a company for a director of the company in contravention of section 330 of the Act, section 341(2)(b) imposes liability ‘to indemnify the company for any loss or damage resulting from the arrangement or transaction’ on any other director of the company ‘who authorised the arrangement or transaction’, and it is important, therefore, both in the context of sub-section (2) and in the context of sub-section (5), to identify the ‘arrangement or transaction’ which is said to be in contravention of section 330 of the Act.

Judges:

Chadwick LJ, Dyson LJ, Sir Martin Nourse

Citations:

[2006] EWCA Civ 943, Times 21-Jul-2006

Links:

Bailii

Statutes:

Companies Act 1985 330(2)(a)

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 26 August 2022; Ref: scu.242977

Vaidya v Wijayawardhana: ChD 31 Mar 2010

Application for permission to appeal against refusal of annulment of bankruptcy order.

Judges:

Asplin QC J

Citations:

[2010] EWHC 716 (Ch), [2010] BPIR 1016

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 August 2022; Ref: scu.425615

Moriarty and Another v Various Customers of BA Peters Plc (In Administration): ChD 22 Jul 2008

Judges:

Strauss QC Hhj

Citations:

[2008] EWHC 2203 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Moriarty and others v Various Customers of BA Peters Plc (In Administration) ChD 29-Apr-2008
The company had acted as boat sales and brokerage. Claims were made on its insolvency as to the status of boats sold and unsold, and of deposits paid and held by the company. . .

Cited by:

Appeal from – Moriarty and Another v Atkinson and Various Customers of BA Peters Plc CA 16-Dec-2008
The company, a boat sales agent, made a promise to its customers to hold the funds received from them in a trust account. In breach of that promise, it used the funds to pay its own debt. The customers now appealed against a refusal to allow them to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Consumer, Equity

Updated: 24 August 2022; Ref: scu.276673

Hope v Premierpace (Europe) Ltd: 1999

A claim for an account and payment was not one for debt which could form the subject of a statutory demand.

Judges:

Rimer J

Citations:

[1999] BPIR 695

Jurisdiction:

England and Wales

Cited by:

Cited – McGuinness v Norwich and Peterborough Building Society CA 9-Nov-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 August 2022; Ref: scu.450449

Payne and Another, Regina (on The Application of) v Secretary of State for Work and Pensions: Admn 26 Jul 2010

The court was asked as to the lawfulness of the Secretary of State making deductions from ongoing social security benefit to recover the overpayment of incapacity benefit and the repayment of a social fund budgeting loan during the moratorium period of a debt relief order.
Held: The Secretary of state could not deduct the sums sought.

Judges:

Cranston J

Citations:

[2010] EWHC 2162 (Admin), [2010] BPIR 1389, [2010] ACD 99

Links:

Bailii

Statutes:

Social Security Administration Act 1992 71, Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 SI 1988/664, Social Security Contributions and Benefits Act 1992 138(1)(b), The Social Fund (Applications and Miscellaneous Provisions) Regulations 2008, Tribunals, Courts and Enforcement Act 2007

Cited by:

Appeal from – Secretary of State for Work and Pensions v Payne and Another CA 14-Dec-2010
Appeal by Secretary of State against judicial review finding unlawful the deductions made from the claimants’ social security benefit allowances after the claimants Debt Relief Order had come to an end.
Held: The appeal failed. . .
At first Instance – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Benefits, Insolvency

Updated: 23 August 2022; Ref: scu.421888

Francoise-Eleonor Hanssens-Ensch, in her capacity as insolvency administrator of Agenor SA v European Community: ECJ 29 Jul 2010

Europa (Law Governing The Institutions) Article 235 EC and the second paragraph of Article 288 EC – Jurisdiction of the Court of Justice to hear and determine an action for damages brought against the European Community on the basis of non-contractual liability – Action to make good a shortfall in assets within the meaning of Article 530(1) of the Belgian Code des societes – Action brought against the European Community by the insolvency administrator of a limited company – Jurisdiction of national courts to hear and determine such an action.

Citations:

C-377/09, [2010] EUECJ C-377/09

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 22 August 2022; Ref: scu.421312

The Winding Up Board of Landsbanki Islands Hf v Mills and Others: OHCS 20 Jul 2010

The claimants had made claims in the insolvency of Landsbanki in Iceland. There had been a ruling by Landsbanki’s winding-up board in those Icelandic winding-up proceedings that to the extent that it was final and binding in Iceland, it must also be recognised and given effect in the United Kingdom, and that effect should also be given to the extinguishment of a claim under Icelandic law if not presented within a particular time.
Held: The ruling in Iceland had effect within the insolvency proceedings iin Scotland.

Judges:

Lord Glennie

Citations:

[2010] ScotCS CSOH – 100, [2011] 2 BCLC 437, [2010] CSOH 100, 2010 GWD 34-706

Links:

Bailii

Statutes:

Credit Institutions (Reorganisation and Winding Up) Regulations 2004

Citing:

Cited – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .

Cited by:

Appeal from – Heritable Bank Plc (Administrators of) v The Winding Up Board of Landsbanki Islands Hf SCS 28-Sep-2011
The appellant (H) had claimed in the responder’s (L) insolvency proceedings in Iceland. Their claim had been rejected by L’s winding-up board, and then withdrawn. L then claimed in H’s own insolvency in Scotland, saying that within the EEA, and . .
At Outer House – Heritable Bank Plc, Administrators of v The Winding-Up Board of Landsbanki Islands Hf SC 27-Feb-2013
A claim by Heritable (H) in Landsbanki’s (L) insolvency had been rejected and then withdrawn before the Icelandic court, and L now appealed against rejection of its own assertion that that Icelandic decision was binding also within its own claim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency, European

Updated: 22 August 2022; Ref: scu.421293

BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL Plc and Others: ChD 30 Jul 2010

The parties disputed whether the respondent was in law insolvent at the time it entered into financial transactions with it.
Held: The Court rejected the Noteholders’ submission that Eurosail was plainly insolvent for the purposes of section 123(2) as applied, relying on four points. First, Eurosail’s claims in the insolvencies of other companies, though not admitted, could not be ignored. The secondary market indicated that the claim was worth a value of the order of andpound;60m. Second, a large part of the total deficiency that was claimed to exist was due to conversion into sterling at the prevailing spot rate of liabilities not due for payment until 2045. Third, the future liabilities were fully funded in the limited sense that deficiencies resulting from mortgage defaults reduced Eurosail’s liability to the Noteholders through the operation of the Principal Deficiency Ledger. Fourth, the Chancellor was able to infer that a calculation of the then present values of assets and liabilities would not show a deficiency, since Eurosail was well able to pay its debts as they fell due, there was no deficiency on the Principal Deficiency Ledger, and projected redemptions of each class of A Notes were in advance of the maturity dates.

Judges:

Sir Andrew Morritt C

Citations:

[2011] 1 WLR 1200, [2010] EWHC 2005 (Ch), [2010] Bus LR 1731

Links:

Bailii

Statutes:

Insolvency Act 1986 123

Jurisdiction:

England and Wales

Cited by:

Appeal from – BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL Plc and Others CA 7-Mar-2011
The court was asked questions to interpret the terms of interest-bearing notes, which were issued by Eurosail-UK 2007-3BL PLC, a special purpose vehicle formed to hold income-producing assets, consisting of mortgage loans, to be used to meet the . .
At First Instance – BNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 22 August 2022; Ref: scu.421238

Rubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others: CA 30 Jul 2010

Judges:

Ward, Wilson, Henderson LJJ

Citations:

[2010] EWCA Civ 895, [2011] Bus LR 84, [2011] 2 WLR 121, [2011] 1 Ch 133

Links:

Bailii

Statutes:

Cross-Border Insolvency Regulations 2006

Jurisdiction:

England and Wales

Citing:

Order – Rubin and Another v Eurofinance Sa and Others CA 20-Jul-2010
The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New . .
Appeal from – Rubin and Another v Eurofinance Sa and Others ChD 31-Jul-2009
. .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 22 August 2022; Ref: scu.421207

Integrated Building Services Engineering Consultants Ltd (T/A Operon) v PIHL UK Ltd: SCS 1 Jul 2010

In Scots law it would be inequitable for a debtor of a bankrupt to be required to pay his debt in full, while he could only get a dividend for the debt due to him by the bankrupt, but there is no consensus as to whether this principle is a species of retention, as Lord McLaren in Ross v Ross (1895) 22 R 461 suggests, or an extension of compensation by which one claim may be set-off against another, resulting in the extinction of the former claim.

Judges:

Lord Hodge

Citations:

[2010] ScotCS CSOH – 80

Links:

Bailii

Citing:

Considered – Ross v Ross SCS 1895
The pursuer was the widow of Sir Charles Ross who died in 1883 and was succeeded by his pupil son. From then until 1893, when her son attained majority, the pursuer had acted as his sole tutor and curator. She was entitled to an annuity of . .

Cited by:

Cited – Heritable Bank Plc, Administrators of v The Winding-Up Board of Landsbanki Islands Hf SC 27-Feb-2013
A claim by Heritable (H) in Landsbanki’s (L) insolvency had been rejected and then withdrawn before the Icelandic court, and L now appealed against rejection of its own assertion that that Icelandic decision was binding also within its own claim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 21 August 2022; Ref: scu.420859

Kent and Others (Liquidators of La Banque Ville-Marie) v La Communautu Des Soeurs De Charitu De La Providence and Others: PC 20 Mar 1903

(Quebec) The liquidators of a bank had sued on a cause of action vested in the bank. The Canadian courts had refused leave to amend to add the bank as a plaintiff on appeal.
Held: The liquidators’ appeal succeeded. There was power to amend to allow an amendment to add the bank as a party and that it should have been exercised.

Citations:

[1903] UKPC 17, [1903] AC 220

Links:

Bailii

Cited by:

Cited – Irwin and Another v Lynch and Another CA 6-Oct-2010
The court considered an appeal against an order allowing an amendment outside the limitation period which would . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency, Litigation Practice

Updated: 20 August 2022; Ref: scu.419502

The Law Debenture Trust Corporation Plc v Elektrim Sa and Another: ChD 1 Aug 2008

Claimant’s application for expedition of this action, with the court to give appropriate directions in support of the requested expedition. The case that is put forward in favour of expedition arises out of the fact that Elektrim, a Polish company, is presently in the process of bankruptcy proceedings in Poland and the particular type of bankruptcy proceedings in question, involve the company, through its administrator, proposing to creditors a composition under which they will be paid less than the full amount of the debt and there will be a period of postponement before they are paid that percentage of their debt.

Judges:

Morgan J

Citations:

[2008] EWHC 2187 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Litigation Practice

Updated: 20 August 2022; Ref: scu.396458

Laemthong International Lines Company Ltd v Abdullah Mohammed Fahem and Co: CA 5 May 2005

Citations:

[2005] EWCA Civ 519

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999

Jurisdiction:

England and Wales

Cited by:

Cited – The Prudential Assurance Company Ltd v Ayres and Grew ChD 3-Apr-2007
The defendants argued that they were not liable as guarantors under an Authorised Guarantee Agreement for a lease when the assignee tenant had become insolvent.
Held: The guarantors were liable provided that the extent of the claim did not . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 20 August 2022; Ref: scu.224520

Clarke v Coutts and Co: CA 17 Jun 2002

The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order absolute. The claimant was not represented at that hearing. Several years later he sought to set aside the order. At first instance the judge said that the court retained a discretion, and ex debito justiciae, the order should stand. The claimant appealed.
Held: The statute did not allow for any such discretion. Rule 3.2 allowed discretion in cases of procedural error, but this was statutory. The order absolute remained valid until set aside, but the right to have it set aside was equally absolute. The nisi order was a temporary order made complete on order absolute. It was therefore a continuing action within the section. The order absolute was therefore void, and since the order nisi was conditional upon it, that fell away also.

Judges:

Lords Justice Simon Brown and Peter Gibson and Sir Murray Stuart-Smith

Citations:

Gazette 27-Jun-2002, [2002] EWCA Civ 943, [2002] BPIR 916

Links:

Bailii

Statutes:

Insolvency Act 1986 252(2), Civil Procedure Rules 3.2

Jurisdiction:

England and Wales

Citing:

Applied – Roberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
Applied – Calor Gas v Piercy 1994
. .
Overruled – Haly v Barry CA 1868
A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor’s estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but . .
See Also – Clarke v Coutts and Co (A Firm) CA 17-Jun-2002
The court refused to allow a very late amendment raising a new point. . .

Cited by:

See Also – Clarke v Coutts and Co (A Firm) CA 17-Jun-2002
The court refused to allow a very late amendment raising a new point. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking, Civil Procedure Rules

Updated: 20 August 2022; Ref: scu.174167

Candey Ltd v Crumpler and Another (Liquidators of Peak Hotels and Resorts Ltd): ChD 15 Feb 2019

Judges:

Andrew Hochhauser QC sitting as a deputy High Court judge

Citations:

[2019] Bus LR 1901, [2019] EWHC 282 (Ch), [2019] WLR(D) 130

Links:

Bailii, WLRD

Statutes:

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5 and Saving Provision) Order 2013, Cross-Border Insolvency Regulations 2006

Jurisdiction:

England and Wales

Insolvency, Costs, Legal Professions

Updated: 19 August 2022; Ref: scu.640873

HSBC Bank Plc v Tambrook Jersey Ltd: CA 22 May 2013

The court considered the interpretation of section 426 of the 1986 Act, and in particular the circumstances in which the courts of England and Wales have jurisdiction to accede to a request for assistance from a foreign court (in this case, the Royal Court of Jersey).

Judges:

Longmore, McFarlane, Davis LJJ

Citations:

[2013] EWCA Civ 576, [2013] BCC 472, [2013] WLR(D) 193, [2013] BPIR 484, [2014] 2 WLR 71, [2013] 2 BCLC 186, [2014] 1 Ch 252, [2013] 3 All ER 850

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 426

Jurisdiction:

England and Wales

Insolvency

Updated: 19 August 2022; Ref: scu.510010