The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in October 1991. In December 1990 the court answered an application for the sale of the property by the trustee with a charging order made absolute in May 1992. In 2004, the trustee again applied for possession and sale. The defendant pleaded limitation.
Held: A charge imposed under s313 of the 1986 Act secured a future obligation, and until the obligation became a present one, no right to receive the sum secured arose. Therefore time ran from the date of the order for sale, not from the date of the charge.
[2006] EWCA Civ 1080, Times 14-Aug-2006, [2007] 1 WLR 86
Bailii
Limitation Act 1980 20(1), Insolvency Act 1986 313, Trusts of Land and Appointment of Trustees Act 1996 14
England and Wales
Citing:
Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Appeal from – Doodes v Gotham, Perry ChD 17-Nov-2005
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . .
Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
Cited – Midland Bank plc v Pike 1988
. .
Cited – Farran v Beresford HL 30-Aug-1843
The House considered the nature of scire facias, and in particular whether scire facias created a new right, or whether it only operated as a continuation of the original judgment. ‘The present right to receive the same’ was understood by Tindal . .
Cited – Earle v Bellingham 24-Jul-1857
The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant. . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Swiss Bank Corporation v Lloyds Bank Ltd 1979
A subjective test was applied as to whether the court could find an intention to interfere with contractual relations. . .
Cited – Swiss Bank Corporation v Lloyds Bank Ltd CA 1981
An equitable charge is created when property is expressly or constructively made liable to the discharge of a debt or some other obligation, and the charge confers on the chargee a right of realisation by judicial process such as a sale order. . .
Cited – Re Owen 1894
Legacies were charged on land after the death of the life tenant. The life tenant died in 1880. It was not suggested that time ran from the death of the testator in 1854. . .
Cited by:
Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Limitation
Updated: 10 December 2021; Ref: scu.243398