Tag: Insolvency

Sir Robert Edward Wilmot, Baronet v Joseph Rose: 25 Apr 1854

Sect. 11 of the Act ‘To regulate the sale of farming stock taken in execution,’ 56 G. 3, e. 50, enacts that no assignee of any bankrupt or insolvent debtors’ estate, or under any bill of sale, nor any purchaser of the goods, chattels, stock or crop of any peraon employed in husbandry, on lands let to farm, shall use or dispose of any produce of such land in any other manner, and for any other purpose, than sucb bankrupt, insolvent, or other person employed in husbandry, ought to have used or disposed of the same if there had been no bankruptcy, assignment or sale made.-Held : that this prohibitioti as to purchasers is not confined to purchasers under an execution.

Citations:

[1854] EngR 424, (1854) 3 El and Bl 563, (1854) 118 ER 1253

Links:

Commonlii

Jurisdiction:

England and Wales

Agriculture, Insolvency

Updated: 15 May 2022; Ref: scu.293281

Simeon Warburg v William Owen Tucker: 12 Jun 1855

Defendant, being indebted to plaintiff, assigned to him, as security, an insurance ori defendant’s life, and an insurance on the life of defendant’s wife, and covenanted (1) to pay the premiums, (2) that, if he did not pay them, plaintiff might pay them and defendant would repay plaintiff. PlainItiff sued defendant on tbis covenant, assigning, as breaches of covenant, (1) that defendant had not paid the premiums, and (2) that defendant had not paid to plaintiff’ premiums paid by plaintiff in defendant’s default. Defendant, to the whole declaration, pleaded his bankruptcy and certificate, averring that they had occurred after the execution of the deed, but not that they had occurred after the breaches had taken place. Held, on demurrer to the plea: that the plea gave no answer to the declaration, neither of the plaintifYs claims being a debt payable upon Contingency, within sect. 177 of The Bankrupt Law Corisolidation Act, 1849 (12 and 13 Vict. e. lOS), nor a liability to pay money upon a contingency, within sect. 178.

Citations:

[1855] EngR 595, (1855) 5 El and Bl 384, (1855) 119 ER 524

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 15 May 2022; Ref: scu.292517

Smith v Secretary of State for Trade and Industry: EAT 15 Oct 1999

The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the tribunal chairman was also employed by the respondent and could not therefore be independent.
Held: Although the Human Rights Act was not yet in force, when looking at a case which would be reheard after it has come into effect, it is right to allow for the Act. Article 6 of the Convention allows a fair trial, yet in this case, the bankrupt’s representative, and the tribunal hearing his case were both indirectly employees of the respondent. As a bankrupt, the claimant’s affairs were managed by the Official Reciver, again an employee of the respondent. The appellant should have been given chance to argue the point before the tribunal. In any event that fact that the claimant was a controlling shareholder did not of itself disqualify him from being an employee and entitled to a redindancy payment. His appeal was allowed.

Judges:

Morison J

Citations:

Times 15-Oct-1999, Gazette 10-Nov-1999

Statutes:

Human Rights Act 1998, European Convention on Human Rights and Fundamental Freedoms 6.1, Employment Rights Act 1996 166

Jurisdiction:

England and Wales

Citing:

Cited – Buchan and Ivey v Secretary of State for Employment EAT 20-Jun-1996
. .
See Also – Smith v Secretary of State for Trade and Industry EAT 13-Oct-1997
. .
Cited – Secretary of State for Trade and Industry v Bottrill CA 12-Feb-1999
There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Employment

Updated: 15 May 2022; Ref: scu.89343

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 Act could be used to determine arrears of salary attributable to the period prior to the administrators’ appointment.
Lord Browne-Wilkinson said: ‘This ‘rescue culture’ which seeks to preserve viable businesses was and is fundamental to much of the Act of 1986. Its significance in the present case is that, given the importance attached to receivers and administrators being able to continue to run a business, it is unlikely that Parliament would have intended to produce a regime as to employees’ rights which renders any attempt at such rescue either extremely hazardous or impossible.’

Judges:

Lord Browne-Wilkinson

Citations:

Independent 23-Mar-1995, Gazette 03-May-1995, Times 23-Mar-1995, [1995] 2 AC 394

Statutes:

Insolvency Act 1986 19 44, Apportionment Act 1870 2

Jurisdiction:

England and Wales

Citing:

Appeal from – 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. . .

Cited by:

Appealed to – 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. . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Krasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
Cited – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 15 May 2022; Ref: scu.84826

Morris and Others v Agrichemicals Ltd and Others: CA 20 Dec 1995

No mandatory set off on liquidation without the requirement for mutuality. The Court accepted a proposition that a chargeback arrangement was inefficiency, no implication followed as to the recourse against the Depositor of a collateral security.

Citations:

Times 08-Jan-1996

Statutes:

Insolvency Rules 1986 4.90

Jurisdiction:

England and Wales

Cited by:

Cited – Tam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 May 2022; Ref: scu.83841

Jacobs v Official Receiver; In re Jacobs (a bankrupt): ChD 3 Apr 1998

The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the court had no power to make such an order. The Official receiver had served his report, and there had been full compliance with Insolvency Rule 6.215, that the bankrupt was present and able to argue against the making of the bank interim order at the hearing.
Held: The court had to be satisfied that the grounds would, if unchallenged, have enabled the court to make an order under Section 279 (3). Since the court would be able to make a final order on an inter partes hearing, it also had a power to act on an interim basis. Once the bankrupt was discharged, the bankruptcy could not be revived. The appeal failed.
A court considering an application under section 279(3) may make an interim order suspending a bankrupts automatic discharge pending a full hearing of the Official Receiver’s application for such suspension.

Judges:

Michael Burton QC

Citations:

Times 16-Jun-1998, [1999] 1 WLR 619

Statutes:

Insolvency Act 1986 279(3)

Jurisdiction:

England and Wales

Citing:

Cited – Clydesdale Bank plc v Davidson and Others (Scotland) Clydesdale Bank plc v Davidson and Others HL 16-Oct-1997
(Scotland) Joint pro indiviso proprietors of land were not able at law to create a binding lease in favour of one of their number, so as to defeat the proper claims of a third party. A person cannot enter into a contract with himself.
Held: . .
Cited – Hardy v Focus Insurance Co (In Liquidation) ChD 19-Jul-1996
The Court has no power to direct the Official Receiver as to suspension of bankruptcy. . .
Cited – Whittaker’s Trustee v Whittaker ScSf 1993
. .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:

Cited – Bagnall QC v the Official Receiver ChD 18-Jun-2003
The bankrupt was to receive his automatic discharge. The receiver had applied ex parte to suspend the automatic discharge. The bankrupt appealed.
Held: The court had power to make such an order. The court had seen strong prima facie evidence . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 May 2022; Ref: scu.82465

Clements and Another v Udall: ChD 7 Jul 2000

Where in an insolvency an office holder was not carrying out his prescribed functions, it was open to the court itself to appoint others to such tasks as were required. The power existed both under the court’s inherent jurisdiction, and under the Act. An application should be on notice save in emergency, but the court could make temporary appointments pending the on notice hearing.

Citations:

Times 07-Jul-2000, Gazette 27-Jul-2000

Insolvency

Updated: 15 May 2022; Ref: scu.79213

A Debtor v Focus Insurance Co Ltd (In Liquidation): ChD 12 Jul 1993

An expedited bankruptcy petition could be filed, despite the existence of an outstanding application to set aside the statutory demand on which it was based. Section 270 overrides section 267(2(d).

Judges:

Mummery J

Citations:

Times 12-Jul-1993

Statutes:

Insolvency Act 1986 270, Insolvency Rules 1986 (1986 No 1925)

Insolvency

Updated: 15 May 2022; Ref: scu.77574

Guinan III v Caldwell Associates: 2004

Citations:

[2004] BPIR 531, [2004] EWHC 3348 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 14 May 2022; Ref: scu.258441

In re Daisytek-ISA Ltd and others: 2004

The court was asked where the centre of main interests of French and German subsidiaries of ISA International plc was situated for the purposes of article 3.1 of the Regulation.
Held: After referring to recital (13) to the Regulation, to the commentary at paragraph 75 of the Virgos-Schmit Report and to the registrar’s decision in Skjevesland: ‘In my view the most important ‘third parties’ referred to in recital 13 are the potential creditors. In the case of a trading company the most important groups of potential creditors are likely to be its financiers and its trade suppliers. The evidence in this case is that the financing of the business of the German companies by a factoring agreement was organised for them by International in Bradford and that 70% of goods supplied to the German companies are supplied under contracts made by International in Bradford. It appears that a large majority of potential creditors by value (which I regard as the relevant criterion) know that Bradford is where many important functions of the German companies are carried out.’

Judges:

Judge McGonigal

Citations:

[2004] BPIR 30

Jurisdiction:

England and Wales

Citing:

Cited – Skjevesland v Geveran Trading Company Limited ChD 2002
The registrar had decided that the debtor’s centre of main interests was situated in Switzerland.
Held: Article 3 of Regulation (EC) 1346/2000 did not displace the bankruptcy jurisdiction which (as the registrar found) the High Court would . .

Cited by:

Cited – Shierson v Vlieland-Boddy CA 27-Jul-2005
The debtor claimed that he could not be served with an insolvency petition, being resident in Spain.
Held: The court was to look to where was the centre of his main interests to determine whether to open insolvency proceedings. On that basis, . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 14 May 2022; Ref: scu.249853

In re Mark One (Oxford Street) plc: 1999

Jacob J referred to the inherent jurisdiction of the court with particular reference to Ex parte James.

Judges:

Jacob J

Citations:

[1999] 1 WLR 1445, [1999] 1 All ER 608

Statutes:

Insolvency Act 1986 14(3)

Cited by:

Not followed – In re Luna Metal Products Ltd (in Administration) CA 14-Dec-2006
The administrators held cash. They proposed a distribution giving creditors who would on a winding up be preferential, full preference. They appealed refusal by the court to sanction the proposal.
Held: The court had no power to make such an . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 14 May 2022; Ref: scu.247768

Marseilles Extension Rly and Land Co: 1867

The court considered the circumstances when a liquidator could be removed. The words ‘due cause’ did not require anything amounting to misconduct or personal unfitness. It was sufficient if it could be shown that it was on the whole desirable that a liquidator should be removed. It was a serious and valid objection to the liquidator’s efficiency that a considerable number of the creditors were opposed to his continuance in office: ‘I am of opinion that under the 141st section of the Act I have a discretionary power to remove the liquidators appointed by the company. The question is, what is meant by the words ‘On due cause shewn’? On one side it is contended that ‘due cause’ must be something amounting to misconduct or personal unfitness; on the other side it is contended, and I think that the contention is borne out by the case of Ex parte Pullbrook, that the Court may take all the circumstances into consideration and if it finds that it is, upon the whole, desirable that a liquidator should be removed, it may remove him.’

Judges:

Malins V-C

Citations:

(1867) LR 4 Eq 692

Statutes:

Companies Act 1862 141

Cited by:

Cited – 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 . .
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. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 May 2022; Ref: scu.215938

Coulter v Chief Constable of Dorset Police: ChD 12 Dec 2003

The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and there had been no assignment of the benefit of the order.
Held: The office of chief constable was not a corporation, but an office. Some assignment was required. There was no statutory assignment, but there had been an equitable one. An equitable assignment need take no particular form: ‘All that is needed is a sufficient expression of an intention to assign’. Equity would treat as done that which ought to have been done.

Citations:

Times 24-Dec-2003, [2003] EWHC 3391, [2004] 1 WLR 1425

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General for New South Wales v Perpetual Trustee Co Ltd PC 14-Mar-1955
(Australia) The Crown could not recover damages for the loss of the services of a police constable as the result of injuries caused by the negligence of a third person. A chief constable was an office held under the Crown, and the usual relationship . .

Cited by:

Appeal from – 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.
See Also – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Police, Insolvency, Equity

Updated: 12 May 2022; Ref: scu.189946

In re EWA, A Debtor: CA 1901

The general rule is that where an obligation is joint and several, the release of one of two joint debtors has the effect of releasing the other, but: ‘It is clear that, although a document in terms purports to release one of two joint debtors, yet it may contain in terms a reservation of rights against the other joint debtor. Where you find those two provisions you construe the document, not as a release, but merely as an undertaking not to sue a particular individual, and the result is that the right to proceed against the co-debtor is reserved and can be put in force against him. Whenever you can find from the terms of the document an agreement for the reservation of rights against the co-debtor, then, I agree, the document cannot be construed as an accord and satisfaction of the joint debt, and, therefore, as a release of the co-debtor.’

Judges:

Collins LJ

Citations:

[1901] 2 KB 642

Jurisdiction:

England and Wales

Cited by:

Cited – Matthews v Pournasrollahzadeh and Another CA 9-Mar-1998
The tenant fell into arrears, and discussed a surrender with the landlord. It had been intended that the landlord would waive any arrears, but he then claimed that there had been an implied surrender by law, and that the arrears remained.
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 May 2022; Ref: scu.187716

TSB Bank plc v Platts (No 2 ): 1997

Judges:

His Honour Judge Weeks Q.C

Citations:

[1997] BPIR 302

Jurisdiction:

England and Wales

Cited by:

Appeal from – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 May 2022; Ref: scu.184791

Re A Debtor (No.488 IO of 1996), JP v A Debtor: ChD 1999

The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to receive a part payment in full and final settlement. She applied to revoke the approval.
Held: She succeeded. She wife had a right not enjoyed by other creditors namely the freedom to assert her claim following the husband’s bankruptcy notwithstanding the husband’s discharge which right would be overreached if she was compelled to accept a dividend under the IVA in full and final settlement of her entitlement. She had been unfairly prejudiced to the extent that her special position had not been recognised.

Judges:

Sir John Vinelott

Citations:

[1999] 2 BCLC 571

Statutes:

Insolvency Act 1986 262

Jurisdiction:

England and Wales

Cited by:

Applied – Child Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 11 May 2022; Ref: scu.402616

Regina v Lord Chancellor, ex parte Lightfoot: CA 18 Aug 1999

A debtor does not have a right, under the constitution to participate in any scheme for the relief of debt. Accordingly it was not ultra vires for the Lord Chancellor to provide no discretion on the payment of court fees by an intending applicant for bankruptcy. Such fees were used toward the administration of the applicant’s affairs.

Citations:

Times 18-Aug-1999, Gazette 11-Aug-1999

Statutes:

Insolvency Fees Order 1986 (1986 No 2030) 8(1) 9(b)

Jurisdiction:

England and Wales

Insolvency, Constitutional

Updated: 11 May 2022; Ref: scu.85375

Official Receiver v Environment Agency: CA 5 Aug 1999

A waste management licence could constitute both property and onerous property for the purposes of the Insolvency Act. It could also be an interest incidental to the land to which it related. Because of this the liquidator of a waste management company could disclaim the licence without committing an offence under the Act.

Citations:

Times 05-Aug-1999

Statutes:

Environmental Protection Act 1990 33 34, Insolvency Act 1986 178(3), 436

Jurisdiction:

England and Wales

Environment, Insolvency

Updated: 11 May 2022; Ref: scu.84428

Masters and Others v Leaver: CA 2 Sep 1999

A judgment obtained by default against a bankrupt in a foreign jurisdiction, was not sufficient evidence of itself, to establish that the debt which it proved had been obtained or created by fraud, or by a fraud to which they were a party. The party had been debarred from defending himself, and a finding on those terms could not mean that the debt should survive a bankruptcy here.

Citations:

Gazette 02-Sep-1999, Times 05-Aug-1999

Statutes:

Insolvency Act 1986 281 (3)

Jurisdiction:

England and Wales

Insolvency, International

Updated: 10 May 2022; Ref: scu.83466

In Re Lee (A Bankrupt): CA 22 Aug 1999

The court has sufficient discretion to order that the surplus proceeds of sale of a leasehold interest could be paid to the liquidator despite his having himself disclaimed any interest in the lease. Nobody else had claimed an interest, and the creditors should receive the benefit. This was sensible despite the apparent termination of the liquidator in the lease.

Citations:

Times 22-Aug-1999

Statutes:

Insolvency Act 1986 320 315(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Lee (A Bankrupt) ChD 24-Feb-1998
An order vesting a lease disclaimed by the trustee in bankruptcy, in a mortgagee, may provide that any profit which is made on a re-sale of the lease was to be paid on to the receiver for the benefit of creditors. . .

Cited by:

Appealed to – In Re Lee (A Bankrupt) ChD 24-Feb-1998
An order vesting a lease disclaimed by the trustee in bankruptcy, in a mortgagee, may provide that any profit which is made on a re-sale of the lease was to be paid on to the receiver for the benefit of creditors. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 May 2022; Ref: scu.82003

Midland Banking Co v Chambers: 1869

Citations:

(1869) LR 4 Ch App 398

Jurisdiction:

England and Wales

Cited by:

Cited – In re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
Cited – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 May 2022; Ref: scu.238734

In Re A and C Supplies Limited: ChD 17 Oct 1997

Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to perform his duties.
Held: The appointments were personal, and the only practical course was for his removal. The court has jurisdiction to make such an order under the 1986 Act. The more testing question was as to whether the court could make an alternative appointment. Though there was no such express power in the Act, the rules presupposed it.

Judges:

Blackburne J

Citations:

Unreported, 17 October 1997

Statutes:

Insolvency Act 1986 108(2) 172(2)

Jurisdiction:

England and Wales

Citing:

Cited – Re Bridgend Goldsmiths Limited and Others ChD 1995
The High court may not exercise its jurisdiction under section 263 of the 1986 Act within a voluntary arrangement within the county court. . .
Cited – John Abbott and others No 00137 of 1997 ChD 1997
Having exercised its power under s41 to remove liquidators and supervisors, the court had power itself to appoint replacement officers. The existing practitioner had ceased to hold the appropriate authorisation. . .
Cited – Re Bullard and Taplin Ltd ChD 1996
Tne question of whether there was at any time ‘pending court proceedings’ was answered by asking if there existed a court file. The section empowered a court itself to appoint another trustee in bankruptcy. Section 41 of the 1984 Act could be used . .
Cited – In re Sankey Furniture Ltd, ex parte Harding; Re Calorifique Limited, ex parte Betts ChD 1995
Separate applications were made by liquidators of companies in variously voluntary or compulsory liquidation and otherwise. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 07 May 2022; Ref: scu.246700

In re Designer Room Ltd: ChD 2005

Judges:

Rimer J

Citations:

[2005] 1 WLR 1581

Jurisdiction:

England and Wales

Cited by:

Cited – In re Luna Metal Products Ltd (in Administration) CA 14-Dec-2006
The administrators held cash. They proposed a distribution giving creditors who would on a winding up be preferential, full preference. They appealed refusal by the court to sanction the proposal.
Held: The court had no power to make such an . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 07 May 2022; Ref: scu.247766

In re Harris Simons Construction Limited: ChD 1989

The section gives the court jurisdiction to make an administration order if it ‘(a) is satisfied that a company is or is likely to become unable to pay its debts’ and ‘(b) considers that the making of an order . . would be likely to achieve’ one or more of the purposes specified in s8(3). The court had to consider the meaning of the word ‘likely’.
Held: ‘likely’ connotes probability but the particular degree of probability intended must be gathered from qualifying words (very likely, quite likely, more likely than not) or context. It cannot be a misuse of language to say that something is likely without intending to suggest that the probability of its happening exceeds 0.5. The legislature seemed to intend to set a modest threshold of probability to found jurisdiction and to rely on the court’s discretion not to make orders in inappropriate cases.

Judges:

Hoffmann J

Citations:

[1989] 1 WLR 368

Statutes:

Insolvency Act 1986 8(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Cream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Lachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 06 May 2022; Ref: scu.182935

Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd: CA 7 Oct 1996

A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third party is considered to be the real party interested in the outcome of the suit … It is not, however, sufficient to render a director liable for costs that he was a director of the company and caused it to bring or defend proceedings which he funded and which ultimately failed. Where such proceedings are brought bona fide and for the benefit of the company, the company is the real plaintiff. If in such a case an order for costs could be made against a director in the absence of some impropriety or bad faith on his part, the doctrine of the separate liability of the company would be eroded and the principle that such orders should be exceptional would be nullified. The position of a liquidator is a fortiori. Where a limited company is in insolvent liquidation, the liquidator is under a statutory duty to collect in its assets. This may require him to bring proceedings. … If he brings the proceedings in the name of the company, the company is the real plaintiff and he is not. He is under no obligation to the defendant to protect his interests by ensuring that he has sufficient funds in hand to pay their costs as well as his own if the proceedings fail.’

Judges:

Millet LJ

Citations:

Times 12-Dec-1996, [1997] 1 WLR 1613, [1996] EWCA Civ 670, [1996] EWCA Civ 671, [1997] BCC 165, [1998] 1 Costs LR 85, [1997] 1 All ER 418

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – BE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
Cited – Dolphin Quays Developments Ltd v Mills and others CA 17-May-2007
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from . .
Cited – Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates QBD 18-Nov-2008
Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order . .
Cited – Goknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 05 May 2022; Ref: scu.83673

In Re A Debtor (No 303 of 1997): ChD 3 Oct 2000

A former partner in a firm was not to be heard to claim a set off of sums due to him in the accounting following the break up of the firm, against sums claimed for an indemnity claimed against him by the other partners in respect of payments made by them as trustees to satisfy partnership obligations in a lease of premises occupied by the partnership.

Citations:

Times 03-Oct-2000

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 04 May 2022; Ref: scu.81655

Parsons v McBain: 5 Apr 2001

Federal Court of Australia – BANKRUPTCY – constructive trust – transfer of property to beneficiary – whether void as against trustee in bankruptcy
EQUITY – equity of exoneration – how defeated
TRUSTS – ‘common intention constructive trust’ – whether trustee in bankruptcy takes subject to trust – time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
‘Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. ‘So, if the borrowed funds are applied to discharge the surety’s debts, the surety could not claim exoneration, at least in respect of the benefit received.’
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised.’

Judges:

Black CJ, Kiefel, Finkelstein JJ

Citations:

[2001] FCA 376, (2001) 109 FCR 120, 192 ALR 772

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Armstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Trusts

Updated: 04 May 2022; Ref: scu.581747

Re Jogia (A Bankrupt): 1988

Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to serve out cannot resist an application challenging the jurisdiction by pleading a new cause of action. A claim for unjust enrichment, in the absence of a contractual relationship between the parties, and other than claims to land, are governed by the law of the place of enrichment.
Sir Nicolas Browne-Wilkinson V-C said (obiter): ‘As at present advised, I am of the view that quasi-contactual obligations of this kind arise from the receipt of the money. I find it difficult to see how such obligation can be said to be ‘made’ or ‘arise’ in any place other than that of receipt. As to the proper law, Dicey and Morris, the Conflict of Laws, 10th edn. (1980), p.921 expresses the view that, save in cases where the obligation to repay arises in connection with a contract or an immoveable, the proper law of the quasi-contact is the law of the country where the enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle.’

Judges:

Nicolas Browne-Wilkinson V-C

Citations:

[1988] 1 WLR 484, [1988] 2 All ER 328

Citing:

Applied – Parker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 May 2022; Ref: scu.441564

Bracy’s Case: 1738

He was committed by commissioners of bankruptcy, and the conclusion of the commitment was, until he conform himself to our authority, and be thence delivered by due course of law.

Citations:

[1738] EngR 150, (1688-1710, 1738) Holt KB 94, (1738) 90 ER 950 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 02 May 2022; Ref: scu.385543

Bracy’s Case EngR 334: 1792

Commissioners of bankrupts may ask a witness when and in what manner he had been aiding in carrying away the bankrupt’s goods and what he knew of the bankrupt’s goods even from a time before the bankruptcy.

Citations:

[1792] EngR 334, (1792) 1 Ld Raym 99, (1792) 91 ER 962 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 02 May 2022; Ref: scu.358546

In re Metropolis Estates Co Ltd: CA 1940

Citations:

[1940] 3 All ER 522

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another HL 4-Feb-1999
The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 29 April 2022; Ref: scu.197014

Dublin City Distillery (Great Brunswick Street, Dublin) Limited and Another v Doherty: HL 1914

D had advanced monies to a distillery company on the security of manufactured whisky stored in a warehouse. On the occasion of each advance, the company delivered to D an invoice and a warrant which described the particulars of the whisky and stated that it was deliverable to D or his assigns.
Held: A person against whom the unauthorised liquidator is litigating may not object to such lack of authorisation, for it is a matter between the liquidator and the creditors. Lord Parker stated: ‘in my opinion s.151 of the Companies (Consolidation) Act, 1908, which enables a liquidator in the case of a winding-up in Ireland to bring or defend legal proceedings with the sanction of the Court, was not intended to confer, and does not confer, on third parties any right to object to proceedings brought by a liquidator in the name of the company, on the ground that no such sanction has been obtained.’
Delivery of the subject property is absolutely necessary to complete a pledge, although the transfer of possession may be actual or constructive: ‘There are, however, cases in which possession may pass to the pledgee without actual delivery, for example, whenever there is some agreement between the parties the effect of which is to change the possession of the pledger from a possession on his own account as owner into a possession as bailee for the pledgee: see Meyerstein v. Barber.(1) Such an agreement operates as a delivery of the goods to the pledgee and a redelivery of the goods by the pledgee to the pledger as bailee for the purposes mentioned in the agreement. A mere book entry cannot, however, have this effect . .’
The terms of the warrant were ambiguous. Lor Parker said that if the true meaning of the warrant was that it was intended to be an acknowledgement by the distillery company that it held the goods referred to as bailee for D or his assigns by indorsement: ‘it is sufficient to change the nature of the company’s possession, operating as an actual delivery of the goods to [D], and a redelivery of the same goods by him to the company to hold as bailee for him. Under these circumstances, on the hypothesis that the company was in actual possession, [D] obtained a good pledge at common law.’

Judges:

Lord Parker of Waddington

Citations:

[1914] AC 823, 111 LT 8

Statutes:

Companies (Consolidation) Act 1908

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Equity, Company, Insolvency

Updated: 29 April 2022; Ref: scu.194545

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 no change. There was no divesting of the debtor’s property until the trustee was appointed, when the trustee’s title would relate back, but that ‘…the potentiality of something happening afterwards to devest the property is not a parting with his property by the debtor so as to prevent the extent of the Crown affecting that property’. The section did not bind the Crown. In the absence of any statutory provision for relation back, the Crown could only take the property of the debtor at the time of the issue of the writ; if he had previously assigned or transferred his property the Crown could not take it. Accordingly, the question was whether the act of bankruptcy was in fact, and not merely in contemplation of law in consequence of the section, an assignment of the debtor’s property.

Judges:

Sir George Jessel MR

Citations:

(1879) 10 ChD 595

Statutes:

Bankrup[tcy Act 1869 11

Jurisdiction:

England and Wales

Cited by:

Cited – 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; . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 April 2022; Ref: scu.186752

Platts v Western Trust and Savings Ltd: CA 9 Jun 1993

The court examined the extent of the Judge’s discretion on hearing an application to set aside a statutory demand. When property was valued for the purposes of a statutory demand, it should be as on a forced sale. A ‘forced sale’ was taken as one requiring completion within four months. The judge, in dealing with the application to set aside the statutory demand, had refused to allow cross-examination of conflicting valuation evidence in order to establish the value of the security. The Appeal Court was asked if that had been his last opportunity to chalenge the valuation.
Held: rr 7.51 and 7.57 of the 1986 Rules would give the court which heard the petition power to determine the value of the security on proper evidence from both sides, in a case where the debtor satisfied it that there were substantial grounds for thinking that the petitioning creditor might be fully secured.

Judges:

Sir Christopher Slade

Citations:

Gazette 09-Jun-1993, [1996] BPIR 339

Statutes:

Insolvency Act 1986 267 268

Jurisdiction:

England and Wales

Cited by:

Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 April 2022; Ref: scu.84768

Great Eastern Railway Co v Lord’s Trustee: HL 14 Dec 1908

A railway company contracted by ‘ledger agreement’ with a coal merchant to allow credit for the carriage of coal. Certain allotments of space within the premises of the railway company were leased by it to the coal merchant. The ledger agreement provided that the railway company should have a continual lien for the balance of freight over the coal in course of being carried and also over coal stored upon the allotments. The allotments were situated within the company’s yard, which was regularly locked by the company at night. The coal merchant’s account being in arrear, the company locked the gates leading to the allotments and held possession of coal stored there, excluding the coal merchant.
Held ( diss. Lords Robertson and Collins) that the railway company were in possession of the coal in the allotments and that they had a valid lien.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, Robertson, Atkinson, and Collins

Citations:

[1908] UKHL 1024, 46 SLR 1024

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant, Insolvency

Updated: 26 April 2022; Ref: scu.621529

Bank of Scotland v Liquidators of Hutchison Main and Co Ltd: HL 6 Feb 1914

The solicitors of a limited liability company wrote to a bank-‘We further write to say that we are authorised by the directors, and our London correspondents have our instructions, forthwith to procure from Mr Johnson a debenture or floating charge over the whole of his assets in name of this company for the amount required to secure the debt due by Mr Johnson to our clients. So soon as that debenture reaches our hands we have instructions to make it available to the Bank of Scotland as further and additional security for the repayment by our clients of their indebtedness to the bank, and it is understood in respect of the arrangements made that the bank will give to those interested in the company the benefit of the arrangements referred to in past correspondence.’ Correspondence followed as to whether an assignation or a mortgage should be given to the bank, but though the debenture in favour of the company was granted, nothing more was done before the company went into liquidation.
Held that the bank had no preferential claim on the debenture.

Judges:

Earl of Halsbury, Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1914] UKHL 229 – 1, 51 SLR 229 – 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency, Banking

Updated: 26 April 2022; Ref: scu.620706

Angel Group Ltd v Davey: ChD 12 Jul 2018

Claim by liquidators for several liquidated companies against their former director for compensation for breach of trust or breach of fiduciary duty. It was said that she had diverted various assets to her own use.

Judges:

Fancourt J

Citations:

[2018] EWHC 1781 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 25 April 2022; Ref: scu.619889

Wiemer and Trachte: ECJ 28 Jun 2018

(Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Article 3 (1) – International jurisdiction – Article 21 – Advertising measures – Article 24 – No initiation of the procedure of insolvency – Execution for the benefit of the debtor – Presumption of ignorance – Revocatory action

Citations:

C-296/17, [2018] EUECJ C-296/17 – O, ECLI:EU:C:2018:515

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 24 April 2022; Ref: scu.619034

Wild Duck Ltd v Smith and Others: CA 27 Jun 2018

The court was asked whether the owners and landlords of a site known as Waters Edge prevented performance of an obligation by a Management Company to undertake and complete works on common parts of the site, an obligation which (it is said) came into effect on the liquidation and disappearance of the original developer.

Citations:

[2018] EWCA Civ 1471

Links:

Bailii

Jurisdiction:

England and Wales

Land, Insolvency

Updated: 24 April 2022; Ref: scu.618931

Wessely and Another (Liquidators of Laishley Ltd) v White: ChD 14 Jun 2018

Claim made by application notice by the liquidators of Laishley Limited the respondent, managing director for equitable compensation in respect of alleged breaches of fiduciary duty in executing two deeds of release on behalf of the company in relation to building contracts.

Citations:

[2018] EWHC 1499 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 24 April 2022; Ref: scu.618829

JSC BTA Bank v Ablyazov and Another: CA 22 May 2018

‘The main question on this appeal is whether the trial judge made an error of law in rejecting a claim that a payment of money made by the first defendant as a gift to his son (the second defendant) was made for the purpose of putting assets beyond the reach of the claimant and was therefore liable to be set aside under section 423 of the Insolvency Act 1986. A second question raised by a respondent’s notice is whether the judge should have rejected the claim in any event on the ground that it is time-barred.’

Citations:

[2018] EWCA Civ 1176

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 22 April 2022; Ref: scu.616327

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.

Citations:

Times 18-Nov-1993, Gazette 02-Mar-1994

Jurisdiction:

England and Wales

Cited by:

Appeal from – Sargent v Commissioners of Customs and Excise CA 23-Feb-1995
Property company receiver liable to pay VAT collected on rents to Commissioners. . .
Lists of cited by and citing cases may be incomplete.

VAT, Landlord and Tenant, Insolvency

Updated: 20 April 2022; Ref: scu.89009

Equal Exchange Trading Limited, Note of and The Provisional/Interim Liquidator of for Interim Approval of Accounts of Intermissions: SCS 11 Apr 2018

The noter having prepared accounts of her intromissions presented a note seeking that the accounts should be audited and a payment in respect of her remuneration fixed for her period of appointment as provisional liquidator and the period of her appointment as interim liquidator.

Citations:

[2018] ScotCS CSOH – 35

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 14 April 2022; Ref: scu.609365

Milne, Liquidator of Premier Housewares (Scotland) Llp v Rashid: SCS 14 Mar 2018

The noter sought an order under section 214A of the 1986 Act for recovery of sums withdrawn by the respondent from the LLP in the two year period before the granting of the winding up order.

Citations:

[2018] ScotCS CSOH – 23

Links:

Bailii

Statutes:

Insolvency
Act 1986 214A

Jurisdiction:

Scotland

Insolvency

Updated: 14 April 2022; Ref: scu.609351

Randhawa and Another v Turpin and Another: CA 1 Aug 2017

The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators

Judges:

Sir Geoffrey Vos, Underhill, Henderson LJJ

Citations:

[2017] EWCA Civ 1201, [2017] WLR(D) 544, [2018] 2 WLR 1175, [2018] Ch 511, [2017] BCC 406

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .
At ChD – Randhawa and Others v Turpin and Another ChD 22-Jul-2016
. .
Cited – Re New Cedos Engineering Company Ltd 1994
The company had two directors. On a death the inheritor of a members shares were entitled to have their shares registered. The majority shareholder died. The remaining board refused to register his widow as owner of the shares. She remarried, and . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 13 April 2022; Ref: scu.591692

Randhawa and Others v Turpin and Another: ChD 22 Jul 2016

Judges:

Purle QC HHJ

Citations:

[2016] EWHC 2156 (Ch), [2016] BCC 814, [2017] 1 BCLC 240

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .

Cited by:

At ChD – Randhawa and Another v Turpin and Another CA 1-Aug-2017
The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 April 2022; Ref: scu.569647

The Governor And Company of Undertakers For Raising Thames Water In York Buildings v Alexander Mackenzie, Writer, To The Signet: PC 15 May 1795

Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant.

Citations:

[1795] EngR 4112, (1795) 8 Bro PC 42, (1795) 3 ER 432

Jurisdiction:

Scotland

Citing:

At Court of Session – York Buildings Co v Mackenzie SCS 8-Mar-1793
Purchase by Common Agent at Auction Voidable
The defendant was the ‘common agent’ for the sale of the assets of an insolvent partnership and purchased some of the assets at a judicial auction.
Held: The purchase was voidable, even though it was made at a sale by auction.
Who bears . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 12 April 2022; Ref: scu.356457

James, Gent, One and Co v Cotton: 1831

Citations:

[1831] EngR 127, (1831) 7 Bing 266, (1831) 131 ER 103

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Cotton v James, Gent One and C 17-Jan-1829
In trespass for entering plaintiff’s dwelling-house and taking his goods on a plea justifying the trespass by proceedings under a commission of bankruptcy, and replication taking issue on the act of bankruptcy, the defendant is entitled to begn. . .
See Also – Cotton v James, Gent One, and C 18-Jan-1829
. .
See Also – Cotton v James 30-Jun-1830
The burden of proof can shift during the course of a trial. Silence in circumstances in which a party would be expected to answer might convert evidence into proof. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.320005

Waters v Widdows: 1984

Citations:

[1984] VR 503

Jurisdiction:

England and Wales

Cited by:

Followed – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 April 2022; Ref: scu.195883

Trustee of the Property of F C Jones and Sons (A Firm) v Jones: CA 13 May 1996

A bankruptcy order was made in 1984. Under the 1914 Act the trustee in bankruptcy got title to all the assets of the bankrupt as of the date of the act of bankruptcy. So, the trustee owned the partnership assets. The wife drew andpound;11,700 out of those assets and invested in potato futures. By November 1984, she had made andpound;50,000 using that money. The trustee sought to recover that sum.
Held: It was the fruit of his money. A trustee in bankruptcy was entitled to an account of profits of investments withheld from him.

Judges:

Miller LJ

Citations:

Gazette 22-May-1996, Times 13-May-1996, [1997] Ch 159

Statutes:

Bankruptcy Act 1914

Jurisdiction:

England and Wales

Cited by:

Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 10 April 2022; Ref: scu.90004

In Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker: CA 22 Feb 1993

The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would prevent those who voluntarily were officers or otherwise participated in the formation or running of an English company to be capable of being summoned by the English court for public examination. Further, Parliament had provided for the winding up of foreign companies, where there was a sufficient connection with the jurisdiction, knowing that section 133 should apply in such a case, thus indicating an intention that officers who may well not be within the jurisdiction should be examined publicly.
Peter Gibson J said: ‘Where a company has come to a calamitous end and has been wound up by the court, the obvious intention of this section was that those responsible for the company’s state of affairs should be liable to be subjected to a process of investigation and that investigation should be in public. Parliament could not have intended that a person who had that responsibility could escape liability to investigation simply by not being within the jurisdiction. Indeed, if the section were to be construed as leaving out of its grasp anyone not within the jurisdiction, deliberate evasion by removing oneself out of the jurisdiction would suffice. That seems to me to be a wholly improbable intention to attribute to Parliament. Further, section 133 must be construed in the light of circumstances existing in the mid-1980s when the legislation was enacted. By use of the telephone, telex and fax machines English companies can be managed perfectly well by persons who need not set foot within the jurisdiction. There is no requirement that an officer of an English company must live in England, nor of course need an officer of an overseas company which may be wound up by the court. Such a company is very likely to have officers not within the jurisdiction.’

Judges:

Dillon LJ, Peter Gibson J

Citations:

Ind Summary 22-Feb-1993, [1993] Ch 345

Statutes:

Insolvency Act 1986 133

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Seagull Manufacturing Co Ltd ChD 1992
The court considered the power of an English court over a foreign resident under section 133.
Held: In contrast with the private examination provisions, on its true construction section 133 applies to those who are within the class of persons . .

Cited by:

See Also – Re Seagull Manufacturing Co Ltd ChD 3-May-1993
A company director who was resident overseas may be subject to disqualification proceedings. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 09 April 2022; Ref: scu.85879

Razzaq v Pala: QBD 6 Jun 1997

The forfeiture of a bankrupt’s lease is not an exercise of a security disallowing landlord from proving in the bankruptcy. the right of physical re-entry is neither a ‘security’ nor a ‘remedy’ within the meaning of those provisions, nor does it constitute ‘other proceedings’ or the execution of ‘other legal process’. The present law is therefore anomalous.

Judges:

Lightman J

Citations:

Times 06-Jun-1997, Gazette 18-Jun-1997, [1997] 1 WLR 1336

Statutes:

Insolvency Act 1986 10 11(3) 130(4) 252(2) 285(3)

Insolvency, Landlord and Tenant

Updated: 09 April 2022; Ref: scu.85681