The claimant appealed refusal to set aside a statutory demand served by the defendant. The parties had become embroiled in criminal proceedings and the defendant sought recovery of assets from the claimant. In those proceedings a costs order had been made and that was the basis of the statutory demand. The claimant said that his counterclaim in the same proceedings exceeded the costs claim.
Held: The judge had failed to allow that he had a discretion because the counterclaim was within the same. The insolvency court could not itself hear the counterclaim, but instead only assessed whether it appeared genuine and serious. The error was so serious as to allow the instant court to make a substitutionary order allowing the appeal.
Judges:
Edward Bartley Jones QC
Citations:
Times 15-Sep-2003, Gazette 02-Oct-2003
Statutes:
Insolvency Rules 1986 (1986 No 1925) 6.5(4)(a)
Jurisdiction:
England and Wales
Citing:
Cited – In Re A Debtor (No 87 of 1999); Debtor v Johnston ChD 14-Feb-2000
It was possible for a debtor, faced with a statutory demand, to seek to set up a debt against the creditor by way of a set-off and cross-demand even though the claim was against the creditor in a different capacity. Here the creditor claimed in . .
Cited – Seawind Tankers Corporation v Bayoil SA CA 12-Oct-1998
Although a company admitted a debt, it was nevertheless right to set aside a petition for winding up under that debt, where the company had an unquantified but greater counterclaim within the same proceedings, even if that claim could not presently . .
Cited by:
Appeal from – Popely v Popely CA 30-Apr-2004
The expression ‘cross-demand’ in rule 6.5(4)(a) did not imply any kind of procedural or juridical relationship to the debt subject to the statutory demand. All it meant was that the demand was one that went the other way, i.e. was a demand by the . .
Lists of cited by and citing cases may be incomplete.
Insolvency
Updated: 28 June 2022; Ref: scu.186084
