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:
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