A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory demand owed to the Bank for a sum greatly in excess of the statutory minimum which was not disputed on substantial grounds, being the petition debt less the net value of the cross claim put at its highest after equitable set-off of the Bank’s debt not the subject of the statutory demand. That sum was payable at the date of the petition and had not been paid or secured or compounded for, and the Judge was entitled to make a bankruptcy order on it.
Judges:
Lord Justice Peter Gibson, Lord Justice Otton, Sir John Balcombe
Citations:
Times 04-Mar-1998, Gazette 25-Mar-1998, [1998] EWCA Civ 241
Statutes:
Insolvency Act l986 264(l)(a) 267(2)
Jurisdiction:
England and Wales
Citing:
Appeal from – TSB Bank plc v Platts (No 2 ) 1997
. .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – General Credits (Finance) Pty Ltd v Stoyakovich 1975
A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. . .
Cited – Standard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
Cited – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Re a Debtor (Nos 49 and 50 of 1992) 1995
The evidence disclosed a genuine triable issue as to whether there was a current liability to pay a sum equalling or exceeding andpound;750 and so a statutory demand had rightly been set aside. The judge had found that the debtor had a substantial . .
Cited – Samuel Keller (Holdings) Ltd v Martins Bank ChD 1970
On an interpleader summons by a bank, the question asked was whether the proceeds of sale held by the bank of properties mortgaged should be paid to the mortgagee or paid into court because the mortgagor had a cross-claim against the mortgagee.
Not followed – Re the Brighton Club QBD 1865
A petitioner served a statutory demand for more than andpound;4,000 on the company but the company bona fide disputed the amount due.
Held: The petition would be dismissed even though more than andpound;50 (the statutory minimum) was due from . .
Cited – Re Humberstone Jersey Ltd CA 24-Jan-1977
A manufacturing company was supplied with machines on terms that they were to be installed within 30 days. The installation was not completed for another 6 months and the company claimed damages for breach of contract. The supplier served a . .
Doubted – Re a Company (No 003729 of 1982 ) ChD 1984
A creditor had claimed that the company owed it some andpound;12,000 for work done by the creditor for the company. The company refused to pay that sum but offered to pay some andpound;2,000. Two years later the creditor served a statutory demand . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Insolvency
Updated: 14 November 2022; Ref: scu.143719
