The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that accordingly subsequent events were not an absolute bar against setting aside the sale. Nourse LJ: ‘The object of ss 423 to 425 being to remedy the avoidance of debts, the ‘and’ between para (a) and (b) of 423(2) must be read conjunctively and not disjunctively. Any order under this section must seek, so far as practicable, both to restore the position to what it would have been if the transaction had not been entered into and to protect the victims of it. It is not a power to restore generally, but in such a way as to protect the victims’ interests; in other words, by restoring assets to the debtor to make them available for execution by the victims. So the first question the judge must ask himself is what assets have been lost to the debtor. His order should, so far as practicable, restore that loss.’
Ind Summary 27-Dec-1993,  1 BCLC 706
Insolvency Act 1986 238(3) 423
England and Wales
Appeal from – Chohan v Saggar ChD 1992
Section 423(3) of the 1986 Act requires a plaintiff to show a dominant purpose to remove assets from the reach of actual or potential claimants or creditors, but not excluding the possibility that there might be other purposes behind the relevant . .
Applied – Walker v WA Personnel Ltd 2002
The assets of group of companies were sold, and it then went into insolvent liquidation. The liquidator claimed that the sale was at an undervalue, and appliied to continue an interlocutory injunction.
Held: There was a triable issue as to . .
Cited – 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 – Gita Ram v Baskinder Ram,Solinder Ram, Monder Ram and Maurice William Russell CA 5-Nov-2004
A bankrupt had, before his bankruptcy disposed of his share in a house at an undervalue. His wife appealed an order that the share disposed of should vest entirely in the trustee in bankruptcy. Matrimonial proceedings had also been commenced.
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.79107