Henderson v Foxworth Investments Ltd: SCS 12 Apr 2011

Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production and reduction of that pretended standard security.
Held: The sale had been made for adequate consideration. The price recorded in the disposition was far below the value of the subjects, but that price had not been the entire consideration for the sale: The buyer had also taken liability for substantial debts. The disposition was not therefore been susceptible to reduction under section 242. Foxworth had therefore obtained its rights under the standard security in good faith, and it was not liable to reduction.
Lord Glennie said: ‘It is not clear to me on the evidence when the documentation purporting to evidence the assumption of the loan by NSL was created, or indeed when the decision was made that the amount of debt assumed would be andpound;1. 85 million rather than some other figure. Mr Liu acted for both LGDC and NSL (albeit under different names) and also took the necessary decisions so far as concerned the loans from members of his family. To that extent, once the decision was made, the documentation could follow later. It was not suggested in argument that the subsequent creation of documents to record the assumption of the loan as part of the consideration for the sale in any way invalidated what had occurred if the decision had in fact been made to assume part of the loan as part of the consideration. I find that that decision had been made.’


Lord Glennie


[2011] ScotCS CSOH – 66





Cited by:

JudgmentHenderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
OpinionHenderson v Foxworth Investments Ltd and Another SCS 1-Mar-2013
(Extra Division Inner House) The liquidator sought to have set aside the sale of a substantial hotel with golf courses on the basis that it was at an undervalue, with the buyer being aware of the seller’s potential insolvency. He appealed against a . .
Outer House OpinionHenderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Lists of cited by and citing cases may be incomplete.


Updated: 01 February 2022; Ref: scu.432879