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 be pursued. Whilst the dismissal of a petition based on a disputed debt is not a matter of discretion, the like treatment of a petition based on a cross-claim can only be a matter of discretion. The cross-claim must, however, be shown to be ‘genuine and serious or, if you prefer, one of substance.
Judges:
Nourse, Ward, Mantell LJJ
Citations:
Times 12-Oct-1998, [1999] 1 WLR 147, [1998] EWCA Civ 1364, [1999] 1 BCLC 62, [1999] 1 All ER 374, [1999] 1 Lloyd’s Rep 211, [1998] BCC 988
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Popely v Popely ChD 25-Jul-2003
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 . .
Applied by analogy – Popeley v Popeley CA 30-Apr-2004
The creditor appealed an order setting aside a statutory demand.
Held: The demand had been issued to enforce a costs order when in related matters an action was pending against the creditor and where the debt upon which the demand was based . .
Applied – 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 . .
Mentioned – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – Dennis Rye Ltd v Bolsover District Council CA 6-May-2009
Right to raise claim against rates insolvency
The ratepayer company sought leave to appeal and to challenge the use of insolvency proceedings to recover council tax. It said that it had a valid counterclaim.
Held: Leave was refused. ‘A company is not prevented from raising a cross-claim . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.
Company, Insolvency
Updated: 25 November 2022; Ref: scu.81740