The phrase ‘with a view of’ in the context of an assertion of making a faudulent preference required it to be established what the person’s dominant intention was to make such. In order to determine what, on the probabilities, was the ‘dominant, operative or effectual intention in substance and in truth’ of the debtor.
Lord Tomlin said that the onus is: ‘on those who claim to avoid the transaction to establish what the debtor really intended, and that the real intention was, to prefer. The onus is only discharged when the court upon a review of all the circumstances is satisfied that the dominant intent to prefer was present. That may be a matter of direct evidence or of inference, but where there is no direct evidence, and there is room for more than one explanation, it is not enough to say that there being no direct evidence, the intent to prefer must be inferred.’
References: [1934] AC 252, [1934] All ER 82
Judges: Lord Tomlin
Statutes: Bankruptcy Act 1914 44(1)
Jurisdiction: England and Wales
This case is cited by:
- Cited – MacDonald (HM Inspector of Taxes) v Dextra Accessories Ltd and others CA 28-Jan-2004
The company had set up a trust for the benefit of its employees. The Inspector sought to tax the payments made into the trust as ’emoluments’
Held: The appeal was allowed. The payments were ‘potential emoluments’ which were held by the . .
(Times 03-Feb-04, , [2004] EWCA Civ 22, Gazette 04-Mar-04, [2004] STC 339)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193444 br>