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Insolvency - From: 1993 To: 1993

This page lists 55 cases, and was prepared on 08 August 2015.

 
In re Maxwell Communications plc [1993] 1 WLR 1402
1993
ChD
Vinelott J
Company, Insolvency
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one's own disadvantage, particularly by analogy with cases on set-off in insolvency. Held: This was not the law. There was no reason why a particular creditor should not waive his right to prove altogether, or save to the extent of assets remaining after another creditor is satisfied, and that he could do this either in the insolvency or in advance of it.
Vinelott J explained his decision in In re British & Commonwealth plc (No 3): "I took the view that to the extent that the assets of the company were insufficient to meet the liabilities to unsecured creditors, other than the holders of the loan stock, the holders of the loan stock had no interest in the assets of the company and no right to vote at a meeting of unsecured creditors, that in the very unlikely, indeed, merely theoretical possibility that the realisation of the company's assets would suffice to meet the claims of the scheme creditors, the rights of the holders of the unsecured loan stock would be unaffected by the scheme; and that in these circumstances the liquidator [sic – he must have meant administrator] could properly call a meeting of the scheme creditors alone, and if the scheme of arrangement was approved, apply to the court to sanction the scheme."
1 Cites

1 Citers


 
Re Shoe Lace Ltd, Power -v- Sharp Investments Ltd [1993] BCC 609
1993
CA
Sir Christopher Slade
Insolvency
A debenture was executed on 24th July 1990. Money earlier advanced by the chargee in anticipation of and in consideration for the debenture, including an advance made on 16th July 1990, had not been made "at the same time as" the creation of the charge for the purposes of section 245(2) of the 1986 Act. Held: The debenture holder's appeal failed. Sir Christopher Slade concluded: "The words "at the time of or subsequently to the creation of . . the charge" in sec. 212 of the 1908 Act (just as the words "at the same time as, or after, the creation of the charge" in sec. 245 of the 1986 Act) were clearly included by the legislature for the purpose of excluding from the exemption the amount of moneys paid to the company before the creation of the charge, even though they were paid in consideration for the charge; on any other construction these words would have been mere surplusage." Section 40 of the 1986 Act is concerned with the position where a charge "which as created" was a floating charge, and the date of creation of a charge is the date on which the charge is executed.
Insolvency Act 1986 40 245
1 Cites

1 Citers


 
In re British and Commonwealth Holdings plc (Nos 1 & 2) [1993] AC 426
1993
HL

Company, Insolvency
Section 236 extended the power of a liquidator to require from the company's officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Insolvency Act 1986 236
1 Citers


 
Knight -v- Lawrence [1993] BCLC 215
1993


Insolvency
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property.
1 Cites

1 Citers


 
In Re Portbase Clothing Ltd; Mould -v- Taylor [1993] Ch 388
1993

Chadwick J
Insolvency, Company
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets. Held: The deed made the bank's floating charge subject to the later floating charge. On crystallisation, the later charge took priority. Under the section, the preferential creditors had overall priority. The assets available to pay the liquidation expenses included the assets subject to the floating charge even though that had crystallised before they were incurred: "a holder of a subsequent fixed charge which has been made subject to a prior floating charge – either by express provisions in the fixed charge itself or by a restriction in the floating charge of which the holder of the fixed charge had notice – takes his security upon terms that, if before the charged property has been realised under that fixed charge events occur which cause the floating charge to crystallise, then the proceeds of realisation must be paid to the holder of the floating charge; the holder of the fixed charge can have no claim upon those proceeds until the claims under the floating charge have been paid out."
Insolvency Act 1984 175(2)
1 Cites

1 Citers


 
Re Ledingham-Smith [1993] BCLC 635
1993
ChD
Morritt J
Company, Insolvency
The bankrupt's accountants had been paid their fees by standing order. Arrears mounted and the sum was increased. On the bankruptcy, the trustee sought to recover the increased payment. The court considered whether they had been given a preference. Held: The accountants had continued to act, and therefore were not in a better position than they would have been had they stopped work and not been paid. To be a preference, there had to be shown evidence of a 'preference in fact'. Morritt J said that: "it may be that pressure does not displace desire in the way that it formerly displaced a dominant intention to prefer but it can certainly affect the question of desire."
and "The phrase 'will be better' in relation to the event of the individual's bankruptcy used in Section 340(3)(b) envisages a bankruptcy after the doing of the thing in question. It also predicates that the position will be better, not may be."
Insolvency Act 1986 249 435
1 Citers


 
In re Parkdawn Ltd Unreported, 1993
1993
ChD
Harman J
Insolvency
The section provided sufficient power to allow a court to appoint a new liquidator in the case of a company's liquidation. Though there is no express power, one is assumed within the insolvency rules.
Incolvency Act 1986 393 - Insolvency Rules 4.116(6)
1 Citers


 
In re a Debtor (No 32 SD 1991) [1993] 1 WLR 314
1993
ChD
Millett J
Insolvency

Insolvency Act 1986 375
1 Citers


 
Aiglon Limited & another -v- Gau Shan Co Limited [1993] BCLC 1321
1993
ChD
Hirst J
Litigation Practice, Arbitration, Insolvency
The defendants had obtained world-wide Mareva injunctions in support of substantive proceedings by way of their counterclaim to enforce an arbitration award against the plaintiffs under section 26 against two companies, Aiglon Limited and L'Aiglon SA (a Swiss company). Held: There was no basis under section 26 for enforcement of the arbitration award against SA, but the question arose whether any other basis for a freezing order against SA existed, having regard to the fact that the defendants' only contractual entitlement was against Limited. There were two bases. It was well arguable that a transfer of assets from Limited to SA fell foul of section 423 of the Insolvency Act 1986, thereby giving the defendants a direct cause of action against SA as victims of the transaction. Second, since an administrator or liquidator of Limited (if appointed) could apply to set aside the relevant transaction under section 238 of the Insolvency Act 1986 with the consequence that SA would hold the assets transferred as trustee for Limited, the case fell within the Chabra jurisdiction since it was arguable that SA held assets beneficially belonging to Limited, against which the defendants had a good cause of action. It mattered not that Limited's arguable beneficial interest in assets transferred to SA was contingent both upon the appointment of an administrator or liquidator of Limited, and the successful pursuit by the officeholder of a claim under section 238.
Arbitration Act 1950 26 - Insolvency Act 1986 423
1 Citers


 
Re Kumar (A Bankrupt), ex parte Lewis -v- Kumar [1993] 1 WLR 224
1993

Ferns J
Insolvency, Family, Land, Insolvency
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had already transferred his interests to W. H was bankrupted, and his trustee applied under Section 339. The trustee relied on both paragraphs (a) and (c) of Section 339(3). He said that the consideration supporting the transfer of the bankrupt's interest was a release of such claims as she might have had under the 1973 Act, sections 23-25. Held: The assertion failed. The transfer of the property happened before the divorce and there was no evidence to support the contention that the transfer was in return for the Respondent agreeing not to apply for further capital provision under Sections 23-25. Ferns J said: "Re Abbott, although it is a decision on Section 42 of the Act of 1914, is applicable to section 339 to the extent that it decides that a compromise of a claim to a provision in matrimonial proceedings is capable of being consideration in money or money's worth".
W's counsel submitted that W had provided consideration. Ferns J said: "I would add that even if I had accepted the argument that there was such a compromise of Dr. Gupta's prospective claim for capital provision as was contended for on her behalf, it appears to me that I would have been driven to substantially the same conclusion. The transfer of Mr. Kumar's interest in 43, Broadwalk was a disposal of his only remaining capital asset of any significance. I cannot believe that any divorce court would have so exercised its jurisdiction under section 24 of the Matrimonial Causes Act 1973 as to require Mr. Kumar to transfer to Dr. Gupta, who had a superior earning capacity, substantially the whole of his capital, leaving him without the means to contribute from capital to the cost of acquiring a separate home for himself. In my view, in all the circumstances of this case as I find them, the transfer of his interest in 43, Broadwalk, contained a substantial element of bounty on the part of Mr. Kumar even if, as I find not to be the case, Dr. Gupta had agreed in return not to seek further provision out of capital."
Insolvency Act 1986 339 - Matrimonial Causes Act 1973 23 24 25
1 Cites

1 Citers


 
Re Kumar (A Bankrupt), ex parte Lewis -v- Kumar [1993] 1 WLR 224
1993

Ferns J
Insolvency, Family, Land, Insolvency
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had already transferred his interests to W. H was bankrupted, and his trustee applied under Section 339. The trustee relied on both paragraphs (a) and (c) of Section 339(3). He said that the consideration supporting the transfer of the bankrupt's interest was a release of such claims as she might have had under the 1973 Act, sections 23-25. Held: The assertion failed. The transfer of the property happened before the divorce and there was no evidence to support the contention that the transfer was in return for the Respondent agreeing not to apply for further capital provision under Sections 23-25. Ferns J said: "Re Abbott, although it is a decision on Section 42 of the Act of 1914, is applicable to section 339 to the extent that it decides that a compromise of a claim to a provision in matrimonial proceedings is capable of being consideration in money or money's worth".
W's counsel submitted that W had provided consideration. Ferns J said: "I would add that even if I had accepted the argument that there was such a compromise of Dr. Gupta's prospective claim for capital provision as was contended for on her behalf, it appears to me that I would have been driven to substantially the same conclusion. The transfer of Mr. Kumar's interest in 43, Broadwalk was a disposal of his only remaining capital asset of any significance. I cannot believe that any divorce court would have so exercised its jurisdiction under section 24 of the Matrimonial Causes Act 1973 as to require Mr. Kumar to transfer to Dr. Gupta, who had a superior earning capacity, substantially the whole of his capital, leaving him without the means to contribute from capital to the cost of acquiring a separate home for himself. In my view, in all the circumstances of this case as I find them, the transfer of his interest in 43, Broadwalk, contained a substantial element of bounty on the part of Mr. Kumar even if, as I find not to be the case, Dr. Gupta had agreed in return not to seek further provision out of capital."
Insolvency Act 1986 339 - Matrimonial Causes Act 1973 23 24 25
1 Cites

1 Citers


 
Whittaker's Trustee -v- Whittaker 1993 SCLR 718
1993
ScSf

Scotland, Insolvency

1 Citers



 
 MS Fashions Ltd -v- Bank of Credit and Commerce International SA; CA 1993 - [1993] Ch 425; [1993] 3 WLR 220; [1993] 3 All ER 769
 
Carr -v- British International Helicopter [1994] ICR 18; [1993] BCC 855; [1994] 2 BCLC 474
1993
EAT
Lord Coulsfield
Employment, Insolvency, Scotland
An employee claimed re-instatement following alleged unfair selection for redundancy by an administrator. Held. The effect of the 1986 Act was not that proceedings brought against a company in administration without consent or the permission of the court were a nullity, but only that they were liable to be stayed as other proceedings in section 11(3)(d). Lord Coulsfield said: "It seems to us that there is no way of construing section 11 so as to exclude from its scope claims under the employment protection legislation."
Trade Union and Labour Relations (Consolidation) Act 1992 188 - Insolvency Act 1986 11(3)(d)
1 Citers


 
Barclays Bank -v- Homan [1993] BCLC 680
1993
CA
Glidewell LJ
Insolvency
If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties.
1 Citers


 
Banque Indosuez -v- Ferromet Resources [1993] BCLC 112
1993

Hoffmann J
Insolvency
There is a general principle in favour of giving judicial assistance to foreign insolvency proceedings by preventing their disruption by the actions of individual creditors.
1 Citers


 
Re Flint (A Bankrupt) Gazette, 03 February 1993
3 Feb 1993
Chd

Insolvency
Adjudication of bankruptcy avoided order in matrimonial proceedings.


 
 Bishopsgate Investment Management Ltd (in Liquidation) -v- Maxwell; CA 16-Feb-1993 - Times, 16 February 1993; [1993] BCC 120
 
In Re Land and Property Trust Co Plc (No 2) Times, 16 February 1993
16 Feb 1993
CA

Litigation Practice, Insolvency, Company
The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.

 
In Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker Ind Summary, 22 February 1993; [1993] Ch 345
22 Feb 1993
CA
Dillon LJ, Peter Gibson J
Company, Insolvency
The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would prevent those who voluntarily were officers or otherwise participated in the formation or running of an English company to be capable of being summoned by the English court for public examination. Further, Parliament had provided for the winding up of foreign companies, where there was a sufficient connection with the jurisdiction, knowing that section 133 should apply in such a case, thus indicating an intention that officers who may well not be within the jurisdiction should be examined publicly.
Peter Gibson J said: "Where a company has come to a calamitous end and has been wound up by the court, the obvious intention of this section was that those responsible for the company's state of affairs should be liable to be subjected to a process of investigation and that investigation should be in public. Parliament could not have intended that a person who had that responsibility could escape liability to investigation simply by not being within the jurisdiction. Indeed, if the section were to be construed as leaving out of its grasp anyone not within the jurisdiction, deliberate evasion by removing oneself out of the jurisdiction would suffice. That seems to me to be a wholly improbable intention to attribute to Parliament. Further, section 133 must be construed in the light of circumstances existing in the mid-1980s when the legislation was enacted. By use of the telephone, telex and fax machines English companies can be managed perfectly well by persons who need not set foot within the jurisdiction. There is no requirement that an officer of an English company must live in England, nor of course need an officer of an overseas company which may be wound up by the court. Such a company is very likely to have officers not within the jurisdiction."
Insolvency Act 1986 133
1 Cites

1 Citers


 
Re A Debtor (No 68 of 1992) Ind Summary, 01 March 1993
1 Mar 1993
Chd

Insolvency
Date on which 'grounds' must exist for annulment of order. A bankrupt applying to annul an order must establish the grounds for annulment not at the date of the hearing of that application, but rather at the date when the order itself was made.
Insolvency Act 1986 282(1)


 
 Macmillan Inc -v- Bishopsgate Investment Trust Plc; Chd 17-Mar-1993 - Gazette, 17 March 1993

 
 in Re Pavlou (A Bankrupt); ChD 17-Mar-1993 - Gazette, 17 March 1993; [1993] 1 WLR 1046; [1993] 3 All ER 955

 
 In Re Kentish Homes Ltd; ChD 31-Mar-1993 - Gazette, 31 March 1993; [1993] BCLC 1375
 
Re: New Bullas Trading Ltd Ind Summary, 05 April 1993; [1993] BCC 251
5 Apr 1993
ChD
Knox J
Company, Insolvency
A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge.
Insolvency Act 1986 40
1 Cites

1 Citers


 
MEPC Plc -v- Scottish Amicable Life Assurance Society and Another: N R European Community (Third Party) Times, 06 April 1993
6 Apr 1993
CA

Insolvency, Landlord and Tenant
An insolvency trustee's notice of disclaimer was effective to disclaim a lease.
Insolvency Act 1986

 
Re Bishopsgate Investment Management Ltd Times, 27 April 1993; Independent, 08 April 1993
8 Apr 1993
CA

Criminal Practice, Insolvency
Serious Fraud Office can still require production of Insolvency Act 1986 interviews taken before charge from the liquidator even after he has been charged..
Criminal Justice Act 1987 2 - Insolvency Act 1986 236

 
Re Headington Investments Ltd Independent, 09 April 1993; Independent, 14 April 1993
9 Apr 1993
CA

Insolvency, Criminal Practice
Transcripts of Insolvency examinations need not be disclosed to defendant, if they were disclosed to the Serious Fraud Office.
Insolvency Act 1986 236


 
 Woodley -v- Woodley (2); CA 12-Apr-1993 - Ind Summary, 12 April 1993; [1994] 1 WLR 1167
 
Stein -v- Blake Times, 13 May 1993; [1994] Ch 16
13 May 1993
CA
Balcombe LJ
Insolvency
The plaintiff argued that: "Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off." Held: The decision in Farley was wrong and that the separate causes of action survived the bankruptcy and could be assigned, subject to the "equity" of the bankruptcy set-off.
Insolvency Act 1986 323f
1 Citers


 
In Re Devon and Somerset Farmers Ltd Times, 25 May 1993; Gazette, 01 September 1993; [1993] BCC 410
25 May 1993
ChD
Hague QC J
Insolvency, Company
An Industrial & Provident Societies Act society is unregistered and is therefore not a company for the purposes of s40. Had that been intended express statutory provision would have been made.
Insolvency Act 1986 40 251 - Industrial and Provident Societies Act 1965 - Companies Act 1985 735
1 Cites


 
Power -v- Sharp Investments Ltd and Another Times, 03 June 1993
3 Jun 1993
CA

Insolvency
Money paid at same time as charge delivered not exempt.
Insolvency Act 1986 245 (2)

 
Platts -v- Western Trust & Savings Ltd Gazette, 09 June 1993; [1996] BPIR 339
9 Jun 1993
CA
Sir Christopher Slade
Insolvency
The court examined the extent of the Judge's discretion on hearing an application to set aside a statutory demand. When property was valued for the purposes of a statutory demand, it should be as on a forced sale. A "forced sale" was taken as one requiring completion within four months. The judge, in dealing with the application to set aside the statutory demand, had refused to allow cross-examination of conflicting valuation evidence in order to establish the value of the security. The Appeal Court was asked if that had been his last opportunity to chalenge the valuation. Held: rr 7.51 and 7.57 of the 1986 Rules would give the court which heard the petition power to determine the value of the security on proper evidence from both sides, in a case where the debtor satisfied it that there were substantial grounds for thinking that the petitioning creditor might be fully secured.
Insolvency Act 1986 267 268
1 Citers


 
In Re Baku Consolidated Oilfields Ltd Times, 07 July 1993
7 Jul 1993
ChD

Insolvency
Collectors of share certificates are not members - have no right to share in compensation.
Insolvency Act 1986 112


 
 A Debtor -v- Focus Insurance Co Ltd (In Liquidation); ChD 12-Jul-1993 - Times, 12 July 1993
 
Re: A Debtor (No 90 of 1992) Ind Summary, 19 July 1993; Times, 12 July 1993
12 Jul 1993
ChD

Insolvency
There is no room for conditional orders in the statutory demand procedure. Rules have been made to allow the court to set aside an application on a statutory demand.
Insolvency Act 1986 - Insolvency Rules 1986 (1986 No 1925)

 
Midrome Ltd -v- Shaw Ind Summary, 26 July 1993
26 Jul 1993
CA

Insolvency
Leave was required for an appeal to the Court of Appeal from the High Court under the Insolvency rules.

 
Mordant -v- Hallas Gazette, 02 August 1993
2 Aug 1993
ChD

Insolvency, Family
A debt due which consisted of a matrimonial lump sum order is not provable in a bankruptcy.
1 Cites

1 Citers


 
Hocking -v- Walker Times, 11 August 1993
11 Aug 1993
CA

Insolvency
A bankrupt resisting a security for costs order in Bank proceedings must show an arguable case.


 
 In Re Bank of Credit and Commerce International Sa, In Re BCCI (Overseas) Ltd (No 9); ChD 11-Aug-1993 - Ind Summary, 20 September 1993; Times, 11 August 1993; [1994] 2 BCLC 636

 
 Heath -v- Tang, Stevens -v- Peacock; CA 11-Aug-1993 - Independent, 14 October 1993; Times, 11 August 1993; [1993] 4 ALL ER 694; [1993] 1 WLR 1421
 
Re Vedmay Ltd Times, 21 October 1993; Ind Summary, 18 October 1993; Ind Summary, 06 September 1993
6 Sep 1993
ChD

Landlord and Tenant, Company, Insolvency, Landlord and Tenant
A statutory tenant has a sufficient locus standi to request the vesting in him of a house disclaimed by the owner company's liquidator.
Insolvency Act 1986 181

 
In Re Paramount Airways Ltd (In Administration) Times, 14 September 1993
14 Sep 1993
ChD

Insolvency, Employment
Administrators may adopt employment contracts without attracting personal liability.
Insolvency Act 1986 19-5
1 Cites


 
Re A Debtor No 64 of 1992 Times, 12 November 1993; Gazette, 26 January 1994
12 Nov 1993
ChD

Insolvency
Creditor not having had properly served on him a notice of the s257 meeting was not bound by an arrangement agreed at the meeting.
Insolvency Act 1986 257 260(2)(b)

 
Re BCCI Sa & Bcci (Overseas) Ltd Gazette, 17 November 1993
17 Nov 1993
ChD

Insolvency
Court may assist Cayman court to enforce insolvency jurisdiction.


 
 Sargent -v- Commissioners of Customs & Excise; ChD 18-Nov-1993 - Times, 18 November 1993; Gazette, 02 March 1994
 
In Re A Company (No 007946 of 1993) Times, 18 November 1993; Gazette, 02 March 1994; [1994] 2 WLR 439
18 Nov 1993
ChD
Morritt J
Insolvency, Company, Northern Ireland
A Northern Ireland company can be wound up in England and Wales if its principal place of business had been in England and Wales. The company incorporated in Northern Ireland became insolvent. It sought to strike out the Secretary of State's petition under 124A, and said it could not apply to a Northern Ireland Company. Held: The definition of an incorporated company included a company incorporated anywhre in the UK.
Insolvency Act 1986 124A 220

 
Western Counties Cons Ltd -v- Witney Town F & S Club Times, 19 November 1993
19 Nov 1993
ChD

Insolvency
A football club was not an unregistered company for the purposes of winding-up procedures.
Insolvency Act 1986 220


 
 Regina -v- Brockley; CACD 25-Nov-1993 - Gazette, 26 January 1994; Times, 25 November 1993; [1994] 99 Cr App R 385
 
Liquidators of First Tokyo Index Trust Ltd -v- Morgan Stanley Trust Co and Others Times, 01 December 1993
1 Dec 1993
OHCS

Insolvency
Company Liquidators have no authority to disclose evidence to creditor.
Insolvency Act 1986 236 & 237

 
In Re A Debtor (No 415-SD-11993) Times, 08 December 1993
8 Dec 1993
ChD

Insolvency
A creditor was not obliged to take an offer of security where there was unsecured debt.
Insolvency Act 1986 268


 
 Menzies -v- National Bank of Kuwait Sak; CA 13-Dec-1993 - Ind Summary, 13 December 1993; [1994] 2 BCLC 306
 
In Re Port (A Bankrupt) (No 516 of 1987) Port -v- Auger Times, 16 December 1993; Ind Summary, 27 December 1993
16 Dec 1993
ChD

Litigation Practice, Insolvency
'Ordinary application' in Insolvency Rules not a pleading to be struck out. Court may strike out 'ordinary application' only if no basis at all for claim.
Rules of the Supreme Court Order 18 rule 19


 
 Chohan -v- Saggar and Another; CA 27-Dec-1993 - Ind Summary, 27 December 1993; [1994] 1 BCLC 706
 
Short's Trustee -v- Keeper of the Registers of Scotland Times, 30 December 1993
30 Dec 1993
IHCS

Insolvency, Registered Land, Scotland
Trustee may not register decree but can seek to have register amended.
1 Cites

1 Citers


 
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