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 aside as a fraud on his creditors.
Held: To have such orders set aside, it must be shown that the transaction had been entered into in order to prejudice the creditors. The court had disbelieved the debtor, but there was no need for the judge to give himself an express Lucas direction, so long as one was applied. ‘There is no general rule that an action brought by a trustee in bankruptcy is not subject to the provisions of the Limitation Act 1980, and I can see no justification for there to be an exception in the case of a claim brought under s.423. ‘


Lord Justice Waller Lady Justice Arden


Times 10-Jul-2006, [2006] EWCA Civ 542, [2007] 1 BCLC 450, [2007] 1 WLR 2404




Insolvency Act 1986 423


England and Wales


Appeal fromHill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another ChD 2005
. .
CitedCarman v Yates ChD 2005
When a civil judge thinks a witness may be lying, he should remember that witnesses may have different reasons for lying, and effectively give himself a Lucas direction. . .
CitedRegina v Lucas (Ruth) CACD 1981
People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) . .
CitedRegina v Middleton CACD 12-Apr-2000
Where a defendant was shown to have lied in the course of proceedings it need not always be necessary to give a Lucas direction. In some circumstances the jury could properly be expected not to follow a prohibited line of reasoning without such a . .
CitedPeter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
CitedRe Sam Weller and Sons Ltd 1990
. .
CitedIn re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
CitedLaw Society v Southall CA 14-Dec-2001
In making a strike out decision under Part 24, the court of first instance was exercising a discretion which an appellate court should be reluctant to disturb. The court should only interfere in the case of a manifest error. The Law Society had . .
CitedRe Maddever 1884
A specialty creditor who applied to set aside a conveyance as fraudulent under the statute 13 Eliz. c.5 was not barred by laches and could be brought at any time before his own claim as a creditor became statute-barred. . .
CitedBuchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
CitedCoburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
CitedInland Revenue v Hashmi and Another CA 3-May-2002
The question for the court was whether when there was more than one purpose of a transaction the proscribed purpose under the section had to be dominant or not.
Held: It was not necessary for the proscribed purpose to be the dominant purpose; . .
CitedRe Priory Garage (Walthamstow) Limited ChD 2001
The court considered the relevance of a statutory limitation period in relation to applications to set aside transactions as being at an undervalue or as voidable preferences under section 238 to 241 of the 1986 Act. Applications to set aside . .
CitedRe Lane-Fox 1900
. .
CitedRe Farmizer (Products) Ltd ChD 19-Jun-1995
The limitation period for an action for wrongful trading under insolvency legislation is six years. Where the statute relied upon enables the court to give relief in monetary or non-monetary form the court should look to see what is actually claimed . .
CitedMenzies v National Bank of Kuwait Sak CA 13-Dec-1993
It must only in exceptional circumstances that a company other than company in liquidation may be alloweed to pursue a debt for the company. . .
CitedAylott v West Ham Corporation CA 1927
The plaintiff sought to recover a sum of money under a statute. . .
CitedCollin v Duke of Westminster CA 1985
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared . .
CitedPratt v Cook, Son and Co (St Paul’s) Ltd HL 1940
. .
CitedCotterill v Price 1960
A statute-barred debt cannot be proved in bankruptcy. . .
CitedCunliffe v Goodman CA 1950
Action for damages for breach of a repairing covenant on the expiry of a lease. The court looked at the intention required of a landlord to show an intended purpose to oppose renewal of a lease. Asquith LJ said: ‘An ‘intention’ to my mind connotes a . .
CitedWest Riding of Yorkshire County Council v Huddersfield Corporation 1957
Where a statute enables the court to give relief in monetary or non-monetary form the court should look to see what is actually claimed. . .
CitedRe Eichholz 1959
The court left open the question whether, if the proceedings were brought by a trustee in bankruptcy, a representative creditor had to be joined. . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedRe 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 by:

CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedNolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
CitedStonham 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Leading Case

Updated: 27 May 2022; Ref: scu.241911