Tag: Insolvency

Re Dennis (A Bankrupt): CA 22 May 1995

A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; the trustee had no choice in the matter. ‘the debtor’s interest in the property was divested on the commission of the act of bankruptcy, in which event the joint tenancy was severed.’ ‘It was a peculiarity of the former law of bankruptcy that the effect of an act of bankruptcy on a joint tenancy depended on whether it was followed by adjudication or not. But it did not depend on whether it was the solvent or the insolvent joint tenant who died before adjudication.’

Citations:

Ind Summary 22-May-1995, [1995] 3 All ER 171, [1995] 3 WLR 367

Statutes:

Bankruptcy Act 1914 37

Jurisdiction:

England and Wales

Citing:

Cited – Cooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .
Appeal from – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Fraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
Disapproved – Ex parte Smith 1800
Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Cited – Doe d Lloyd v Powell 1826
A lessee executed a deed by which he conveyed all his real and personal property to trustees for the benefit of his creditors. This was an act of bankruptcy. A commission was issued against him and he was declared bankrupt. He then sought to forfeit . .
Cited – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Cited – Re Bonham ex parte the Postmaster-General 1879
A bankrupt presented his own petition. It was contended that the relation back of the title of the assignees in bankruptcy to the anterior act of bankruptcy did not affect the rights of the Crown was altered by the 1869 Act
Held: The Act made . .
Cited – Titterton v Cooper CA 1882
The bankrupt was a lessee. His trustee did not disclaim the lease, and the question was whether he was personally liable for the rent which had fallen due between the date of his appointment and the date on which he elected not to disclaim.
Cited – Re Lewis ex parte Helder CA 26-Jul-1883
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his . .
Cited – Re Chapman ex parte Edwards CA 4-Aug-1884
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his . .
Cited – Re Badham ex parte Palmer 1893
The debtor made payments to creditors after the bankruptcy petition had been presented, and after the act of bankruptcy. After the debtor had been adjudicated bankrupt the trustee in bankruptcy sought to recover the payments as fraudulent . .
Cited – Re Pollitt CA 1893
The debtor had put his solicitor in funds to meet future costs. The solicitor then prepared a deed of assignment for the benefit of the creditors which the debtor executed. The debtor was afterwards adjudicated bankrupt, the act of bankruptcy being . .
Cited – Re Hirth CA 1899
The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated . .
Cited – Montefiore v Guedalla 1901
The bankrupt had a protected life interest in a trust fund under the will of his late father which was defeasible inter alia if he should do or omit to do or should suffer to be done any act whereby the income of the trust fund if payable to himself . .
Cited – Stein v Pope CA 1902
A lessee assigned the lease by an assignment which constituted an act of bankruptcy. He was subsequently adjudicated bankrupt and his trustee disclaimed the lease. During the interval between the assignment of the lease and the date of the . .
Cited – Re Gunsbourg CA 1920
The debtor transferred his assets to a company formed by him. He later committed an act of bankruptcy on which he was adjudicated bankrupt. The company had sold some of the assets to a bona fide purchaser without notice of the act of bankruptcy. The . .
Cited – Ponsford, Baker and Co v Union of London and Smith’s Bank CA 1906
Was a debtor who had committed an act of bankruptcy but who had not yet been adjudicated bankrupt free to require his secured creditor, who had notice of it, to hand over his securities on payment of the amount due thereon?
Held: He could not. . .
Cited – Re Gershon and Levy 1915
An order was made by consent in a partnership action to tax the costs of the parties and the receiver was ordered to pay the costs when taxed out to the solicitors for the parties out of the partnership assets. When the order was made all parties . .
Cited – Re Ashwell ex parte Salaman Chd 1912
After the presentation of a bankruptcy petition against him, the debtor obtained an adjournment of the petition by paying the petitioning creditors money which he falsely represented to be that of a third party. The debtor was afterwards adjudicated . .
Cited – In Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .

Cited by:

Appealed to – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 21 January 2023; Ref: scu.85752

Cadogan Estates Ltd v McMahon: CA 9 Jun 1999

A provision in a tenancy agreement that the tenancy would cease upon the bankruptcy of the tenant, continued and became part of the terms of a statutory tenancy following the contractual one. The provision was not inconsistent with the idea of the statutory tenancy, and the term was implied into the statutory tenancy.

Judges:

Stuart-Smith and Laws L.JJ. and Jonathan Parker J.)

Citations:

Times 01-Jun-1999, Gazette 03-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1470, [1999] 1 WLR 1689, [1999] L and TR 481

Links:

Bailii

Statutes:

Rent Act 1977 98(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Cadogan Estates Limited v McMahon HL 26-Oct-2000
When a tenancy was terminated and was followed by a statutory tenancy, a term in the contractual tenancy that the tenancy should be forfeit on the tenant’s bankruptcy was continued in and inherited by the statutory tenancy. Though perhaps in . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Housing, Insolvency

Updated: 21 January 2023; Ref: scu.78822

Rowe v Glenister and Others: CA 7 Aug 1995

Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking a striking out for delay must also show some post-writ prejudice caused by the delay.

Citations:

Times 07-Aug-1995, Ind Summary 11-Sep-1995

Jurisdiction:

England and Wales

Cited by:

See Also – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 20 December 2022; Ref: scu.88878

In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland: CA 1989

A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand ‘on other grounds’ within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor’s inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.’
and ‘When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c).’

and ‘Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.’ and
‘In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features.’

Judges:

Lord Justice Nicholls

Citations:

[1989] 1 WLR 271, [1989] 2 All ER 46

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d), Police Act 1996 2

Jurisdiction:

England and Wales

Cited by:

Cited – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Cited – Mahon and Another v FBN Bank (UK) Ltd ChD 6-Jun-2011
The claimants appealed against a refusal to set aside a statutory demand. . .
Cited – White v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
Cited – Moore (T/A James Moore Earth Moving) v Inland Revenue ChNI 5-Dec-2001
Appeal against conditional setting aside of statutory demand. . .
Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Cited – Allen v Burke Construction Ltd ChNI 25-May-2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 12 December 2022; Ref: scu.220020

In re British and Commonwealth Holdings plc (Nos 1 and 2): HL 1993

Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce documents lies, thus, not in a limitation by category of documents (‘reconstituting the company’s state of knowledge’) but in the fact that the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. A proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirement. An application is not necessarily unreasonable because it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.’
and: ‘the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. The proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirements.’

Judges:

Lord Slynn

Citations:

[1993] AC 426, [1992] 4 All ER 876, [1992] 3 WLR 853

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Cited by:

Cited – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Cited – Green v BDO Stoy Hayward LLP ChD 2-Nov-2005
The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 December 2022; Ref: scu.186362

Re Hurren (a bankrupt): ChD 1983

There might have been a surplus after paying the debts due to the Inland Revenue (the major creditor).
Held: The way forward was for the trustee to agree the tax liability with the Revenue but only with the consent of the bankrupt. Walton J said: ‘So in substance it is really a question between the bankrupt and the Revenue with the trustee holding a watching brief to see that neither of them makes any fatal errors.’

Judges:

Walton J

Citations:

[1983] 1 WLR 183

Jurisdiction:

England and Wales

Cited by:

Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Income Tax

Updated: 09 December 2022; Ref: scu.564437

Re a Debtor, ex parte the Debtor v Dodwell: ChD 1949

Harman J held that it was for the bankrupt’s trustee alone to settle with the Crown in a case where the bankrupt had been discharged and there was no tax assessment.

Judges:

Harman J

Citations:

[1949] Ch 236

Jurisdiction:

England and Wales

Cited by:

Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Income Tax

Updated: 09 December 2022; Ref: scu.564436

Whig v Whig: FD 23 Jul 2007

The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy.

Judges:

Munby J

Citations:

[2007] EWHC 1856 (Fam), [2008] 1 FLR 453

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Insolvency

Updated: 07 December 2022; Ref: scu.260013

HM Revenue and Customs v Begum and Others: ChD 15 Jul 2010

The Commissioners claim was founded in an alleged conspiracy from a ‘missing trader intra-community fraud’ amounting to andpound;96 million.
Held: Section 423 had extra territorial effect.

Judges:

David Richards J

Citations:

[2010] EWHC 1799 (Ch), [2011] BPIR 59

Links:

Bailii

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Citing:

Cited – Regalway Care Ltd v Shillingford and others ChD 25-Feb-2005
Applications to vary freezing order. Blackburne J set out a description of the workings of missing trader intra-community VAT carousel frauds. . .

Cited by:

Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, VAT, Insolvency, Jurisdiction

Updated: 06 December 2022; Ref: scu.420810

Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased): ChD 12 Nov 2008

The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the estate to his trustee.
Held: The value of the estate was payable to the trustee in bankruptcy. Once the right vested in the trustee, it could not revert to the bankrupt on release. ‘ the Trustee has never had any proprietary interest in Mrs. Hemming’s half-share of the cottage, or in the proceeds of sale of that specific property. Accordingly, if and to the extent that the Trustee asserted any present entitlement to the proceeds of sale in the hands of Raymond Saul and Co., that claim was unjustified. ‘

Judges:

Richard Snowden, QC

Citations:

[2008] EWHC 2731 (Ch), Times 09-Dec-2008, [2008] WTLR 1833, [2008] NPC 122, [2009] 2 WLR 1257, [2009] Ch 313

Links:

Bailii

Statutes:

Insolvency Act 1986 283(1) 306(1) 436

Jurisdiction:

England and Wales

Citing:

Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

Cited by:

Principal judgment – Raymond Saul and Co (A Firm) v Holden and Another ChD 16-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency

Updated: 04 December 2022; Ref: scu.277939

In Re Thirty-Eight Building Ltd: ChD 14 Jan 1999

For identifying whether a declaration of trust in favour of an employees’ pension scheme was preferential, the test was by reference to the trustees collectively. This was so under the section despite the close identity of the trustees with the directors.

Citations:

Times 14-Jan-1999

Statutes:

Insolvency Act 1986 239 435(5)(b)

Jurisdiction:

England and Wales

Insolvency

Updated: 30 November 2022; Ref: scu.82248

In Re Continental Assurance Company of London Plc (In Liquidation) (2): ChD 14 Jan 1999

The rules are intended to provide a comprehensive and unitary scheme of management of company liquidations, and in voluntary liquidation, the date of the resolution commencing the dissolution is to be used as the date of the winding up order.

Citations:

Gazette 10-Feb-1999, Times 14-Jan-1999

Statutes:

Insurance Companies (Winding Up) Rules 1985 95 L2

Jurisdiction:

England and Wales

Insurance, Insolvency, Company

Updated: 30 November 2022; Ref: scu.81817

In Re Devon and Somerset Farmers Ltd: ChD 25 May 1993

An Industrial and Provident Societies Act society is unregistered and is therefore not a company for the purposes of s40. Had that been intended express statutory provision would have been made.

Judges:

Hague QC J

Citations:

Times 25-May-1993, Gazette 01-Sep-1993, [1993] BCC 410

Statutes:

Insolvency Act 1986 40 251, Industrial and Provident Societies Act 1965, Companies Act 1985 735

Jurisdiction:

England and Wales

Citing:

Distinguished – In Re International Bulk Commodities Ltd ChD 26-Aug-1992
Company receivers in insolvency can include unregistered companies. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 30 November 2022; Ref: scu.81846

In Re Land and Property Trust Co Plc (No 2): CA 16 Feb 1993

The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.

Citations:

Times 16-Feb-1993

Jurisdiction:

England and Wales

Litigation Practice, Insolvency, Company

Updated: 26 November 2022; Ref: scu.81996

Levy v Legal Aid Board: ChD 24 Feb 2000

Although an order for costs might in some circumstances not be provable in an insolvency, that did not prevent a statutory demand based upon that debt. Whether it was provable would become clear in the later insolvency proceedings. The court had a discretion to found a petition on an unproveable debt where there were special circumstances such as, for example other debts which were provable.

Citations:

Gazette 24-Feb-2000, Gazette 16-Mar-2000

Statutes:

Insolvency Rules 1986/1925 12 3 (2) (a)

Jurisdiction:

England and Wales

Costs, Legal Aid, Insolvency

Updated: 22 November 2022; Ref: scu.83037

Smith (a bankrupt) v Braintree District Council: HL 1989

The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Lord Jauncey of Tullichettle said that, in view of the changes in policy shown by the new Act, he felt justified in construing the provision of the Act of 1986 ‘as a piece of new legislation without regard to 19th century authorities or similar provisions of repealed Bankruptcy Acts.’

Judges:

Lord Jauncey of Tullichettle

Citations:

[1989] 3 All ER 897, [1989] 3 WLR 1317, [1990] 2 AC 215

Statutes:

Bankruptcy Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Harlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
Cited – Poulton v Ministry of Justice CA 22-Apr-2010
The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Cited – McRoberts v McRoberts ChD 1-Nov-2012
The parties had agreed to an ancillary relief order on their divorce. The husband was made bankrupt without having paid the lump sum agreed. The former wife and now claimant had received no dividend. Debts which were not provable in the bankruptcy . .
Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Rating

Updated: 18 November 2022; Ref: scu.181067

Trustees of Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa: CA 25 Feb 2013

Application for security for costs of appeal agaiinst winding up order.

Judges:

Kitchin LJ

Citations:

[2013] EWCA Civ 218

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Security for costs – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 14 November 2022; Ref: scu.472024

Raithatha v Williamson: ChD 4 Apr 2012

A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act.

Judges:

Bernard Livesey QC

Citations:

[2012] EWHC 909 (Ch), [2012] 1 WLR 3559, [2012] BPIR 621, [2012] WLR(D) 115, [2012] 3 All ER 1028

Links:

Bailii

Statutes:

Insolvency Act 1986 310

Jurisdiction:

England and Wales

Cited by:

Not followed – Horton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 November 2022; Ref: scu.470135

Heis and Others (Administrators of MF Global UK Ltd) v MF Global Inc: ChD 1 Nov 2012

An investment bank administrator who had been appointed under the 2011 Regulation was strictly analagous to a liquidator being appointed.

Judges:

David RichardsJ

Citations:

[2012] EWHC 3068 (Ch), [2012] WLR(D) 304, [2013] 1 WLR 903, [2013] 1 BCLC 552

Links:

Bailii, WLRD

Statutes:

Investment Bank Special Administration Regulations 2011

Jurisdiction:

England and Wales

Banking, Insolvency

Updated: 06 November 2022; Ref: scu.465530

Relfo Ltd v Varsani: ChD 27 Jul 2012

Claim brought by the Liquidator of the claimant company for recovery of monies belonging to the company which the Liquidator says were diverted by the former director and controller of the company, Mr Gorecia to the account of the Defendant, at Citibank Singapore Limited

Judges:

Sales J

Citations:

[2012] EWHC 2168 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 November 2022; Ref: scu.463301

Hurley v The Darjan Estate Company Plc: ChD 10 Feb 2012

H appealed against an order made for his bankruptcy on an application by DJ.

Judges:

Geraldine Andrews QC

Citations:

[2012] Ewhc 189 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 03 November 2022; Ref: scu.461755

Re MK Airlines Ltd: ChD 26 Apr 2012

The company had appointed administrators. They were later discharged in the belief that the company was solvent. This proved incorrect, and on a creditor’s winding up petition, new interim receivers were appointed. On the winding up, liquidators were appointed, who now sought clarification of the status of charges over the company’s assets in favour of the earlier administrator and receivers in respect of their costs.
Held: The charges were valid and enforceable despite a lacuna in the legislation.

Judges:

Sir Andrew Morritt Ch

Citations:

[2012] EWHC 1018 (Ch), [2013] Bus LR 169, [2014] BCC 87, [2012] 3 All ER 781, [2013] 1 BCLC 9

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Insolvency

Updated: 31 October 2022; Ref: scu.459621

In Re Edennote Ltd; Tottenham Hotspur plc v Ryman: CA 21 May 1996

The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying that the court had been wrong to intervene.
Held: The appeal succeeded in part. The assignment was not re-instated, but the liquidator was. An unsecured creditor did have the right to ask a court to impugn a liquidator’s transactions. Although the words ‘on cause shown’ in section 108(2) do not appear in section 172(2), the difference in the language of the two provisions was immaterial for the purposes of the case. In the case of a compulsory liquidation, the court will not lightly remove its own officer; and the court will, among other considerations, pay a due regard to the impact of removal on the liquidator’s professional standing and reputation. Sir John Vinelott’s statement was correct with the addition that any belief of the creditors must be reasonable. In this case, although the liquidator had made a serious mistake, it was honest, and his integrity and good faith were accepted, and, in all the circumstances, this liquidator ought not to have been removed. No adequate or reasonable grounds had been shown for his removal. When liquidators are exercising their administrative powers to realise assets, the court will be very slow to substitute its judgment for that of the liquidators’ on what is essentially a businessman’s decision.
Nourse LJ said about counsel’s propostion that the correct test for intervening was: ‘namely (fraud and bad faith apart) that the court will only interfere with the act of a liquidator if he has done something so utterly unreasonable and absurd that no reasonable man would have done it’ that ‘it is certainly possible for a liquidator to do something so utterly unreasonable and absurd that no reasonable man would have done it, simply by selling an asset of the company without taking into account the possibility that a third party might well have made a better offer than he to whom it was sold. That was what Sir John Vinelott found Mr Ryman had done in this case and that, no doubt, was why he expressed himself as he did. It does not mean that he applied the wrong test. I am that satisfied that he did not.’ The applicant was a disappointed purchaser and ‘In the latter capacity alone, like any other outsider to the liquidation, they would not have had the locus standi to apply under section 168(5).’

Judges:

Nourse LJ, Millett LJ

Citations:

Times 03-Jun-1996, Gazette 03-Jul-1996, [1996] 2 BCLC 389

Statutes:

Insolvency Act 1986 108(2) 168(5) 172

Jurisdiction:

England and Wales

Citing:

Approved – In re Keypak Homecare Ltd ChD 1987
The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall . .
Appeal from – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman ChD 1-Nov-1994
The company Edennote had been wound up on insolvency. It had a possible claim for fees against Tottenham, owned by Mr Sugare. The shareholder, Terry Venables, took an assignment of that action. An application was made to set aside the assignment and . .

Cited by:

Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
See Also – In re Edennote Ltd (No 2) ChD 1997
Sanction was sought against a liquidator. Lightman J said: ‘The question is the commercial best interests of the company, reflected prima facie, by the commercial judgment of the liquidator, a judgment in my view which, in the circumstances and in . .
Cited – In re Buckingham International Plc and In the Matter of Insolvency Act 1986; Mitchell v Buckingham International Plc CA 16-Feb-1998
. .
Cited – Mahomed and Another v Morris and Others CA 17-Feb-2000
. .
Cited – Ultraframe (UK) Ltd v Rigby and others CA 19-Jan-2005
Appeal against strike out of application to have set aside deeds of assignment. . .
Cited – Cintec International Ltd, Re Sequestration ScSf 12-May-2006
. .
Cited – Sisu Capital Fund Ltd and others v Tucker and others ChD 9-Sep-2005
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 31 October 2022; Ref: scu.81864

Sargent v Commissioners of Customs and Excise: CA 23 Feb 1995

Property company receiver liable to pay VAT collected on rents to Commissioners.

Citations:

Times 23-Feb-1995, Ind Summary 01-May-1995

Jurisdiction:

England and Wales

Citing:

Appeal from – Sargent v Commissioners of Customs and Excise ChD 18-Nov-1993
VAT in rents received by receiver was payable to customs. The receiver is a VAT taxable person even if he is appointed under a floating charge. . .
Lists of cited by and citing cases may be incomplete.

VAT, VAT, Landlord and tenant, Insolvency

Updated: 27 October 2022; Ref: scu.89008

Powdrill and Another v Watson and Another: CA 1 Mar 1994

The administrators of a company are deemed to have accepted the employees who had been kept on after 14 days. A letter from them denying that they would accept them as employees, was insufficient to prevent adoption of the contracts.

Citations:

Independent 22-Mar-1994, Gazette 08-Jun-1994, Gazette 20-Apr-1994, Times 01-Mar-1994, Ind Summary 14-Mar-1994

Statutes:

Insolvency Act 1986 19(5) 27

Jurisdiction:

England and Wales

Citing:

Appealed to – Powdrill and Another v Watson and Another HL 23-Mar-1995
A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 . .

Cited by:

Appeal from – Powdrill and Another v Watson and Another HL 23-Mar-1995
A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 26 October 2022; Ref: scu.84825

In Re New Bullas Trading Ltd: CA 12 Jan 1994

A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be provided for payment of book debts. However ‘Just as it is open to contracting parties to provide for a fixed charge on future book debts, so it is open to them to provide that they shall be subject to a fixed charge while they are uncollected and a floating charge on realisation. No authority to the contrary has been cited and, the principle being as spacious as it has been expressed to be, no objection is on that account sustainable. For these reasons, I would accept [Counsel’s] second main submission and hold that the charge over book debts of the company, as created by the debenture, was, unless and until their proceeds were paid into the specified account, a valid fixed charge.’

Judges:

Nourse LJ, Russell LJ and Scott Baker J

Citations:

Times 12-Jan-1994, Ind Summary 17-Jan-1994, [1994] 1 BCLC 449

Jurisdiction:

England and Wales

Citing:

Appeal from – Re: New Bullas Trading Ltd ChD 5-Apr-1993
A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge. . .
Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:

Reversed – Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
Appealed to – Re: New Bullas Trading Ltd ChD 5-Apr-1993
A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge. . .
Cited – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Insolvency

Updated: 26 October 2022; Ref: scu.82072

Regina v McCredie; Regina v French: CACD 5 Oct 1999

The duty on company officers to disclose assets to the liquidator went beyond a duty to respond to requests, and created a positive duty to inform him of assets. Nor was the obligation to deliver up a once off event, but it was a duty continuing from time to time during the insolvency.

Citations:

Times 05-Oct-1999

Statutes:

Insolvency Act 1986 208 (1)

Jurisdiction:

England and Wales

Insolvency

Updated: 25 October 2022; Ref: scu.87305

Regina v Brockley: CACD 25 Nov 1993

The offence of acting as a company director whilst being an undischarged bankrupt is an absolute offence.

Citations:

Gazette 26-Jan-1994, Times 25-Nov-1993, [1994] 99 Cr App R 385

Statutes:

Company Directors Disqualification Act 1986 11(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Doring CACD 24-Jun-2002
The defendant was charged with acting as a company director whilst being an undischarged bankrupt, and also of being involved in the management of a company using a prohibited name. She said that she had not known that the part she took in the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Crime

Updated: 25 October 2022; Ref: scu.86229

In Re Inside Sport Ltd: CACD 27 Nov 1998

Where a dispute arose as to the identity of a voluntary liquidator, the parties should resolve the dispute by an application to the court for the appointment of a voluntary liquidator. It was wrong to seek instead the compulsory winding up of the company.

Citations:

Times 27-Nov-1998

Statutes:

Insolvency Act 1986 171

Jurisdiction:

England and Wales

Insolvency

Updated: 25 October 2022; Ref: scu.81945

In re Wanser Ltd: 1891

A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that under Scottish law the landlord was a secured creditor at the date of commencement of the winding up, and therefore in the same position as a mortgagee Proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave.

Judges:

North J

Citations:

[1891] 1 Ch 305

Jurisdiction:

England and Wales

Cited by:

Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Landlord and Tenant

Updated: 12 October 2022; Ref: scu.567273

AB Agri Ltd v Curtis and Others: Misc 22 Jul 2016

(Leeds County Court) The creditor sought to have a proof admitted for pounds 479k, but the chair admitted it only for pounds 1.00, and the IVA proposal was accepted again the wishes of the creditor. The creditor said that the IP had misunderstood the claim and should have treated it as liquidated. The chair responded that in fact the claim (under a guarantee) was disputed on substantial grounds and was likely to fail.

Judges:

Behrens HHJ

Citations:

[2016] EW Misc B18 (CC)

Links:

Bailii

Statutes:

Insolvency Rules 1986 5.21 5.22, Insolvenct Act 1986 262

Jurisdiction:

England and Wales

Citing:

Cited – Re a Debtor (No 222 of 1990) ex parte the Bank of Ireland ChD 1992
Harman J discussed the rules of a creditors’ meeting: ‘In my judgment the scheme of the meeting rules in r 5.17 is quite plainly a simple one. As one would expect the meeting is not the place to go into lengthy debates as to the exact status of a . .
Cited – Power v Petrus Estates Ltd and others ChD 31-Oct-2008
The chairman of the creditors meeting had marked the proof of Petrus as objected to but had allowed Petrus to resulting in the appointment of the joint liquidators. The claimant now challenged this saying that had Petrus not been allowed tp vote he . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 October 2022; Ref: scu.567378

British Eagle International Airlines Ltd v Compagnie National Air France: CA 1974

Judges:

Russell LJ

Citations:

[1974] 1 Lloyd’s Rep 429

Jurisdiction:

England and Wales

Cited by:

Appeal from – British Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
Mentioned – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 07 October 2022; Ref: scu.442608

West Mercia Safetywear Ltd v Dodds: CA 1988

If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of insolvency, even a written consent will not totally safeguard against a claim from a liquidator.

Judges:

Dillon LJ, Croom-Johnson LJ and Caulfield J

Citations:

[1988] BCLC 250, [1988] BCC 30

Jurisdiction:

England and Wales

Citing:

Approved – Kinsela v Russell Kinsela Pty Ltd (In Liq) 1986
(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of . .

Cited by:

Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – BTI 2014 LLC v Sequana SA and others SC 5-Oct-2022
Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Leading Case

Updated: 06 October 2022; Ref: scu.188615

Interedil Srl, in liquidation v Fallimento Interedil Srl, Intesa Gestione Crediti SpA: ECJ 20 Oct 2011

interedill2ECJ2011

ECJ Reference for a preliminary ruling – Whether a lower court has the power to refer a question to the Court for a preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – The centre of a debtor’s main interests – Transfer of a registered office to another Member State – Concept of establishment
‘By the second part of Question 3, the Tribunale di Bari asks, in essence, how the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted.
Article 2(h) of the Regulation defines the term ‘establishment’ as designating any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.
The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required. It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an ‘establishment’.
Since, in accordance with Article 3(2) of the Regulation, the presence of an establishment in the territory of a Member State confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
The answer to the second part of Question 3 is therefore that the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition.’

Judges:

President of Chamber A Tizzano

Citations:

[2011] EUECJ C-396/09, [2011] WLR (D) 334, [2012] BCC 851, [2012] Bus LR 1582, [2011] ECR I-9915, [2011] BPIR 1639

Links:

Bailii, Bailii, WLRD

Statutes:

Regulation (EC) No 1346/2000

Citing:

Opinion – Interedil ECJ 10-Mar-2011
ECJ Opinin – Preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – Article 3, paragraph 1 of Regulation No. 1346/2000 – Centre of main interests of the debtor – . .

Cited by:

Cited – Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .
Cited – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Cited – Olympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .
Lists of cited by and citing cases may be incomplete.

European, Insolvency

Updated: 04 October 2022; Ref: scu.451141

Key2Law (Surrey) Llp v De’Antiquis: CA 20 Dec 2011

Judges:

Longmore, Rimer LJJ, Warren J

Citations:

[2011] EWCA Civ 1567, [2012] 2 BCLC 195, [2012] ICR 881, [2012] 2 CMLR 8, [2012] IRLR 212, [2012] BCC 375

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 04 October 2022; Ref: scu.450108

Masri v Consolidated Contractors International Company Sal and Another: ComC 23 May 2008

Application for interpretation of a receivership order.

Judges:

David Steel J

Citations:

[2008] EWHC 1159 (Comm), [2008] 1 All ER 305, [2008] 1 CLC 878

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Masri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
See Also – Masri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .

Cited by:

Appeal from – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
Appeal from – Masri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
See Also – Masri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See Also – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
See Also – Masri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See Also – Masri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See Also – Masri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See Also – Masri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 September 2022; Ref: scu.268734

Kapoor v National Westminster Bank Plc and Another: CA 5 Oct 2011

This appeal concerned two issues of principle relating to the approval of an individual voluntary arrangement. One was as to whether, where there has been an assignment of part of a debt, which can only take effect in equity, the person entitled to vote at the creditors’ meeting called to approve the IVA was the assignor or the assignee. The second was whether there has been a ‘material irregularity’ at or in relation to such a meeting within the 1986 Act section 262(1)(b) if account has been taken of the vote of a creditor who has taken an assignment of part of a debt from an associate of the debtor, the assignment was for no commercial purpose and on uncommercial terms, and was solely for the purpose of enabling the assignee to vote in favour of the IVA, and, had the vote been left out of account, the IVA would not have secured the majority of votes required under the Insolvency Rules 1986.

Judges:

Pill, Etherton LJJ, Sir Mark Potter

Citations:

[2011] EWCA Civ 1083, [2012] 1 All ER 1201, [2011] NPC 97, [2012] Bus LR D25, [2011] BPIR 1680

Links:

Bailii

Statutes:

Insolvency Act 1986 262(1)(b)

Jurisdiction:

England and Wales

Insolvency

Updated: 20 September 2022; Ref: scu.445040

Johnson and Another v Davis and Another: CA 18 Mar 1998

The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part VIII of the Insolvency Act 1986 by a co-obligee who was liable, jointly with the appellants, under the same covenant.’
Held: There is no rule of law that one joint debtor (not joint and several) may not be released from debt by the individual voluntary arrangement of another.
Chadwick LJ observed that: ‘The statutory hypothesis is that the person who had notice of and was entitled to vote at the meeting is party to an arrangement to which he has given his consent . . Unlike the earlier legislation, section 260(2) of the Act of 1986 does not purport, directly, to impose the arrangement on a dissenting creditor whether or not he has agreed to its terms; rather, he is bound by the arrangements as the result of a statutory hypothesis. The statutory hypothesis requires him to be treated as if he had consented to the arrangement.’ Accordingly, questions as to the effect of the arrangement on sureties . . were to be answered by treating the arrangement as consensual; that is to say, by construing its terms as if they were the terms of a consensual agreement between the debtor and all those creditors who, under the statutory hypothesis, must be treated as being consenting parties.’

Judges:

Chadwick, Kennedy, Ward LJJ

Citations:

Times 31-Mar-1998, Gazette 13-May-1998, [1999] Ch 117, [1998] EWCA Civ 483, [1998] 2 All ER 649

Links:

Bailii

Statutes:

Insolvency Act 1986 260(2)

Jurisdiction:

England and Wales

Citing:

Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – RA Securities v Mercantile Credit 1995
The effect of an individual voluntary arrangement was not such as to release solvent co-debtors under the rule of law that the release of one of two or more joint debtors has the effect of releasing the other or others. . .
Applied – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .

Cited by:

Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Damages, Contract

Updated: 19 September 2022; Ref: scu.443849

Kerry Foods Ltd v A Creber and others: EAT 11 Oct 1999

Where a receiver of a company dismissed the employees and then transferred the business to a purchaser, that amounted to an unfair dismissal because it was a TUPE transfer, even though the manufacturing base also moved. The company was liable to the employees. Neither whether there was an economic technical or organisational reason nor the unfairness of the dismissal arose.
EAT Transfer of Undertakings – Transfer

Judges:

The Honourable Mr Justice Morison (President)

Citations:

Gazette 03-Feb-2000, [2000] IRLR 10, EAT/1379/97, [1999] UKEAT 1379 – 97 – 1110, EAT/939/98, [2000] ICR 556

Links:

Bailii, EAT

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Trade Union and Labour Relations (Consolidation) Act 1992 188

Jurisdiction:

England and Wales

Cited by:

Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – Alamo Group (Europe) Ltd v Tucker and Another EAT 24-Feb-2003
The tribunal was asked whether Regulation 5 of the 1981 Regulations have the effect of transferring to the transferee the duties and liabilities imposed on the employer under Regulations 10 and 11? The Respondent (Alamo) appeals from the decision . .
Not Followed – Transport and General Workers Union v James Mckinnon, J R (Haulage) Ltd, John Maitland and Sons, Bibby Distribution Services EAT 29-May-2001
EAT Transfer of Undertakings – Transfer. . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 16 September 2022; Ref: scu.171701

Vickers v Jackson: CA 24 May 2011

The claimant sought the discharge of his property from a charge in favour of the respondent. The respondent now appealed against the setting aside of the charge as a sham, saying that it had been entered into by the claimant as a ruse to defeat his creditors, and that he should not be allowed to take advantage of his own unlawful acts.
Held: The appeal failed: ‘Mr Jackson is not entitled to any remedy under the charge because no money is due under it. It is not and never can be security for any debt. Once that is established, Mr Vickers is entitled as owner of the property to have the entries relating to the charge removed from the register. Otherwise, as the judge said, his present creditors would be at least misled and possibly adversely affected by the presence on the register of entries relating to a charge which in reality secures nothing.’

Judges:

Maurice Kay, Carnwath, Lloyd LJJ

Citations:

[2011] EWCA Civ 725, [2011] 34 EG 104

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Contract

Updated: 15 September 2022; Ref: scu.441234

White v Davenham Trust Ltd: CA 28 Jun 2011

Appeal against order reinstating statutory demand.

Judges:

Maurice Kay VP, Lloyd, Elias LJJ

Citations:

[2011] BPIR 1187, [2011] EWCA Civ 747, [2011] NPC 68, [2011] 27 EG 76, [2011] Bus LR 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Appeal from – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 September 2022; Ref: scu.441237

In re Saunders (A Bankrupt): ChD 1997

Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had been commenced without leave. The words used in s.130(2) of the Insolvency Act 1986 were, in their historical context, capable of bearing more than one meaning and the court should give effect to the meaning which best gave effect to the statutory purpose rather than frustrating it.

Judges:

Lindsay J

Citations:

[1997] Ch 60

Statutes:

Insolvency Act 1986 130(2) 285

Jurisdiction:

England and Wales

Citing:

Considered – Rendall v Blair 1890
Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed . .

Cited by:

Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 14 September 2022; Ref: scu.226025

McDougalls Catering Foods Limited v BSE Trading Limited: CA 2 May 1997

The appellant had guaranteed the tenant’s obligations under an underlease. The tenant having become insolvent, the landlord sought to enforce the guarantee. The appellant said that the landlord had accepted a surrender of the underlease. The landlord had taken possession proceedings after the tenant had left and squatters had moved onto the land. The landlord also sought the cost of the possession proceedings.
Held: Where possession is unequivocally offered and retaken, it will, without more, be inequitable for the landlord to deny that the tenancy has ended, because he cannot at one and the same time have both possession and continuing rent under the tenancy. Aldous LJ said that the court’s task is to ascertain from all the facts whether the landlord’s conduct: ‘did in fact amount to an unequivocal acceptance of cessor of the tenancy such that it would be inequitable for the landlord to dispute that the tenancy ceased’.

Judges:

Aldous LJ

Citations:

[1997] EWCA Civ 1616, [1998] 2 EGLR 65

Jurisdiction:

England and Wales

Cited by:

Cited – Artworld Financial Corporation v Safaryan and Others CA 27-Feb-2009
The parties disputed whether the landlord had accepted the surrender of a lease. The tenant had handed in the keys. The landlord claimed rent for the subsequent period. The court had found surrender by operation of law, the landlord taking several . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 12 September 2022; Ref: scu.142012

In re Sky Land Consultants Plc: ChD 3 Mar 2010

a land-banking arrangement was held to amount to a collective investment scheme within section 235. The company purported to change its practices following intervention by the FCA. The changes were held by the judge insufficient to take it outside section 235. On two sites, the Crewe land and the Winterton land, involving sales respectively of some 56 and 98 individual plots. The company’s option agreements for each site stipulated the terms of any future transfers of individual plots, including a restrictive covenant precluding residential development without the consent of Sky Land. In the first period investors were given the clear understanding that the company would seek to obtain planning permission for each site as a whole, and would bear the full cost of doing so. Its website identified by name its planning consultants and planning solicitors. The judge noted the common expectation (though not formally agreed) that in the meantime the land would remain ‘in the occupation of the original owner and would continue to be farmed’. The FCA intervened and the company agreed to write to investors indicating that the restrictions would be removed, that Sky Land ‘cannot and will not’ play any further role in the development of the site, and that the individual owners would need to make their own arrangements to realise the value of the site as a whole.
Held: The statements had not been fulfilled. The company had continued as before, representing to investors that it would deal with planning and sale, and undertaking activities for that purpose
Richards J said that they fell within section 235: ‘A scheme whereby investors purchase individual plots within a site on the shared understanding that the company will seek planning permission and market the site including the plots are clearly capable of being ‘arrangements’ . . Each of these requirements [of section 235(1)] appears to be satisfied: (i) the arrangements concern land sold off in small plots to investors, (ii) the investors become owners of the individual plots and (iii) the purpose of the arrangements is to receive profits arising from the sale of the individual plots as parts of the larger site.’
and ‘I consider ‘the property’ to be the land comprising the individual plots sold to investors. It is that land, very probably as part of a larger site which includes areas retained by the original owner and areas acquired by the company, for which planning permission and a buyer would be sought by the company. The investors participate by each becoming an owner of part of the property. While it is legally possible for an investor to sell his plot on its own, that is not what is intended or likely to happen. The purpose is to obtain planning permission, for, and to sell, the property as a whole.’

Judges:

Richards J

Citations:

[2010] EWHC 399 (Ch)

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000 235

Jurisdiction:

England and Wales

Cited by:

Cited – Asset Land Investment Plc and Another v The Financial Conduct Authority SC 20-Apr-2016
Proceedings were brought against the appellant’s associated parties, alleging that they had carred on regulated activities without authorisation, contrary to section 19 of the2000 Act. They had offered various plots of land for sale, suggesting they . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services

Updated: 12 September 2022; Ref: scu.439794

Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others): PC 16 May 2006

(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a majority shareholder in the Isle of Man company, but had no involvement in the New York proceedings and resisted the vesting order.
Held: The appeal failed. If the New York order was in rem, then it could not affect title to shares in the Isle of Man. If in personam, the court had a wide common law discretion, but the action had been brought against the wrong party. However the order was neither: ‘The purpose of bankruptcy proceedings . . is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. That mechanism may vary in its details.’
The Manx court had jurisdiction to assist the committee of creditors, as appointed representatives under the Chapter 11 order, to give effect to the plan. As there was no suggestion of prejudice to any creditor in the Isle of Man or local law which might be infringed, there was no discretionary reason for withholding such assistance.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hutton, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2006] UKPC 26, [2007] 1 AC 508, [2006] 3 WLR 689

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Solomons v Ross 1764
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
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 . .
Cited – Re Davidson’s Settlement Trusts 1873
English moveables may vest automatically in a foreign trustee or assignee where the bankrupt submitted to this jurisdiction. . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Borland’s Trustee v Steel Brothers 1901
Farwell J defined a share: ‘a share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second’. . .
Cited – Re Oceanic Steam Navigation Co Ltd 1939
In the case of an insolvent company, in which the shareholders have no interest of any value, the court may sanction a scheme which leaves them with nothing. . .

Cited by:

Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 September 2022; Ref: scu.241830

Sharp and Others v Woolwich Building Society: HL 6 Feb 1997

The House was asked: what is meant by the word property in a floating charge and in section 53(7) of the 1986 Act which provides for the effect of the appointment of a receiver by the holder of such a charge in the following terms: ‘(7) On the appointment of a receiver under this section, the floating charge by virtue of which he was appointed attaches to the property then subject to the charge; and such attachment has effect as if the charge was a fixed security over the property to which it has attached.’
Held: Property which was held in trust was excluded from the receiver’s claim made under a floating security.

Judges:

Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Steyn, Lord Clyde

Citations:

Times 26-Mar-1997, [1997] UKHL 8

Links:

House of Lords, Bailii

Statutes:

Insolvency Act 1986 53(7), Companies (Floating Charges) (Scotland) Act 1961

Jurisdiction:

Scotland

Citing:

Cited – Carse v Coppen IHCS 8-Dec-1950
The court considered the inability to create a floating charge over a company’s assets in Scots law. It was conceded that a company registered in Scotland could not create a valid and effectual floating charge over its assets in Scotland, but it was . .
Cited – Gibson v Hunter Home Designs Limited SCS 7-Nov-1975
A disposition had been executed but not delivered.
Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 September 2022; Ref: scu.135030

In re Wyvern Developments Ltd: ChD 1974

An official receiver ‘must do his best by his creditors and contributories. He is in a fiduciary capacity and cannot make moral gestures, nor can the court authorise him to do so.’

Judges:

Templeman J

Citations:

[1974] 1 WLR 1097

Jurisdiction:

England and Wales

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 September 2022; Ref: scu.222824

Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513): CA 9 Dec 2005

The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The farmers’ appeal as to the farm transaction failed: ‘beyond argument that DEFRA was a ‘victim’ of the ‘transaction’ in the instant case. The fact that the sale by NatWest, looked at in isolation, caused no loss is not to the point. The point is that the ‘transaction’ was not the sale by NatWest, but the arrangement between KF and Miss Hawkins to use that sale as a necessary step in the process of transferring the intended benefit to Miss Hawkins. ‘ The transaction was to be set aside. As to the counterclaim in which damages were sought for trespass in the steps taken to dispose of carcasses of animal slaughtered for foot and mouth. There was no express statutory power to take the steps undertaken, in particular to bury the carcasses. The result was a permanent interference with the land: ‘authority to interfere permanently with private property rights is to be limited to the circumstances identified in section 34(4) and not to be extended to the more general power of disposal conferred by section 34(2). ‘ The European Groundwater Directive could not be used to justify such action, since there was no sufficient breach of the Directive. The Departments appeal on the counterclaims failed.

Judges:

Lord Justice Waller Lord Justice Jonathan Parker Mr Justice Moses

Citations:

[2005] EWCA Civ 1513, Times 22-Dec-2005

Links:

Bailii

Statutes:

Insolvency Act 1986 423, Animal Health Act 1981, Diseases of Animals (Seizure Order) 1993 (1993 No 1685, Foot-and-Mouth Disease Order 1983

Jurisdiction:

England and Wales

Citing:

Appeal from – Department for Environment, Food and Rural Affairs v Feakins and Another ChD 26-Nov-2004
The farmer complained that the department had, during the foot and mouth outbreak destroyed animals which did not belong to the owner of the land. The department said that the farmer had disposed of his land at an undervalue to defeat his creditors. . .
Cited – Re Brabon 2001
The debtor had contracted to sell his land to a third party developer, Silver. Between contract and completion, the debtor was made bankrupt. His wife, who already held legal charges over part of the land, took a transfer of a charge over the . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Phillips (Liquidator of A J Bekhor and Co) and Another v Brewin Dolphin Bell Lawrie Limited and Another CA 17-Mar-1999
When considering whether a breach went to the root of a contract, an associated contract could be split off, even though it would not be split off for insolvency purposes when asking whether a transaction was at an undervalue. . .
Cited – Agricultural Mortgage Corporation Plc v Woodward and Another CA 30-May-1994
A tenancy granted by an insolvent farmer to his wife was set aside because of additional benefits which were granted. The tenancy was held to have been granted at an undervalue, even though the court was unable precisely to measure the value of the . .
Cited – Chohan v Saggar and Another CA 27-Dec-1993
The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – Regina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
Cited – Dixon and Another, Regina (on the application of ) v Secretary of State for the Environment, Food and Rural Affairs QBD 10-Apr-2002
The applicants were farmers. Their cattle were destroyed after contracting foot and mouth disease. Their land was used for the burning of the carcasses of their animals, and of animals from neighbouring farms. They were compensated inter alia for . .
Cited – Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners PC 18-Jan-1927
An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) ‘[t]o deprive a suitor in pending litigation . .
Cited – Minister of Housing and Local Government v Hartnell HL 1965
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Franz Grad v Finanzamt Traunstein. (Measures Adopted By An Institution ) ECJ 6-Oct-1970
Europa It would be incompatible with the binding effect attributed to decisions by article 189 to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision. . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Burton v British Railways Board ECJ 16-Feb-1982
Europa The principle of equal treatment contained in article 5 of council directive 76/207 applies to the conditions of access to voluntary redundancy benefit paid by an employer to a worker wishing to leave his . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Criticised – Anchor Brewhouse Developments -v Berkley House (Docklands) Developments 1987
A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some . .
Cited – Harrow London Borough Council v Donohue CA 1995
The plaintiff complained at the defendant’s garage, half of which had been built on the plaintiff’s land. The judge had awarded damages in lieu of a mandatory injunction for its removal. The Council appealed.
Held: Where a landowner had been . .
See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1658) CA 9-Dec-2005
. .
See Also – Regina on the Application of Feakins v Secretary of State for Environment, Food and Rural Affairs CA 4-Nov-2003
The applicant farmer had substantial volumes of potentially contaminated carcasses on his land. The respondent derogated from the European regulations which would have arranged for the disposal of the carcasses. The respondent challenged the . .

Cited by:

See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1658) CA 9-Dec-2005
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Agriculture

Updated: 07 September 2022; Ref: scu.235918

Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others: CA 19 Apr 2011

The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the defendant and the administrators. The claimant appealed against an order which found that the defendants had had authority to sell the goods.
Held: The appeal failed. Moore-Bick LJ said: ‘Having regard to the commercial considerations mentioned earlier and to the language of clause 7, I am unable to accept that Jet Star’s authority to sell and dispose of goods subject to the retention of title clause was limited to disposals in what, in the context of a floating charge, could be described as the ordinary course of business. ‘

Judges:

Maurice Kay LJ, Smith LJ, Moore-Bick LJ

Citations:

[2011] EWCA Civ 459

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Driver v Broad 1893
An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its . .
Cited – In Re Bond Worth Ltd 1980
The parties disputed the property in goods which had been sold and then gone through successive manufacturing processes. The contract included a retention of title clause. Fibres were converted into manufactured carpets and thus lost their identity . .
Cited – Ashborder Bv and others v Green Gas Power Ltd and others ChD 29-Jun-2004
. .
Cited – Four Point Garage v Carter 1985
A simple retention of title clause was argued to have the effect of preserving title, despite the sale to an ultimate customer. The plaintiff had sold a car to a garage who in turn, it thought was leasing it to the defendant. The defendant was in . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Insolvency

Updated: 06 September 2022; Ref: scu.432839

McGuinness v Norwich and Peterborough Building Society: ChD 23 Nov 2010

The claimant appealed against his bankruptcy saying that it had followed as statutory demand based upon his alleged default under a guarantee of his brothers mortgage borrowings. He said that such a claim was not a liquidated sum within the 1986 Act.
Held: The appeal failed.

Judges:

Briggs J

Citations:

[2010] NPC 116, [2011] BPIR 213, [2011] 1 WLR 613, [2011] 1 All ER (Comm) 334, [2010] EWHC 2989 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 267(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .

Cited by:

Appeal from – McGuinness v Norwich and Peterborough Building Society CA 9-Nov-2011
The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 August 2022; Ref: scu.426470

Vaidya v Wijayawardhana: ChD 31 Mar 2010

Application for permission to appeal against refusal of annulment of bankruptcy order.

Judges:

Asplin QC J

Citations:

[2010] EWHC 716 (Ch), [2010] BPIR 1016

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 August 2022; Ref: scu.425615

Francoise-Eleonor Hanssens-Ensch, in her capacity as insolvency administrator of Agenor SA v European Community: ECJ 29 Jul 2010

Europa (Law Governing The Institutions) Article 235 EC and the second paragraph of Article 288 EC – Jurisdiction of the Court of Justice to hear and determine an action for damages brought against the European Community on the basis of non-contractual liability – Action to make good a shortfall in assets within the meaning of Article 530(1) of the Belgian Code des societes – Action brought against the European Community by the insolvency administrator of a limited company – Jurisdiction of national courts to hear and determine such an action.

Citations:

C-377/09, [2010] EUECJ C-377/09

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 22 August 2022; Ref: scu.421312