The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: Although a winding up petition is, in a general sense, a ‘proceeding in a court of law’ and that it is not proper to characterise it as the individual execution of a judgment obtained by a creditor of the company, the court remained bound by Lowsley and by Lamb.
Judges:
Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Mummery And Lord Justice Scott Baker
Citations:
[2005] EWCA Civ 92, Times 24-Feb-2005
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Ridgeway Motors (Isleworth) Ltd v Altis ChD 21-May-2004
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the . .
Cited – W T Lamb and Sons v Rider CA 1948
The judge at first instance had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution although six years had passed since the judgment. On appeal the judgment creditor challenged the validity of the rule of . .
Cited – Bennett v The Governor and Company of the Bank of Scotland CA 23-Jul-2004
The bank had obtained judgment against the defendant, but had failed to act upon it, and the judgment became unenforceable. It then began later proceedings on the original debt (still within the applicable limitation period). The defendant said this . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Re a Debtor ChD 1997
The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Berliner Industriebank Aktiengesellschaft v Jost 1971
The distinction ‘between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation.’ . .
Cited – Berkeley v Elderkin 1853
An action in the High Court on a debt proved in the County Court did not lie: ‘But where a specific remedy is provided for the recovery of such damages or sums of money, this mode of proceeding cannot be resorted to, as in the case of the new County . .
Cited – Re Overmark Smith Warden Ltd ChD 1982
An ordinary creditor’s cause of action for non-payment of a contract debt is barred after the expiration of 6 years from the date of the accrual of his cause of action. He is then no longer a creditor of the company and is neither entitled to . .
Cited – In re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Limitation
Updated: 29 June 2022; Ref: scu.222613
