Tag: Insolvency

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Slack v Tolson; 4 Aug 1826

References: [1826] EngR 1119, (1826) 1 Russ 553, (1826) 38 ER 213
Links: Commonlii
A, having previously borrowed £1000 of B, executes to him a bond for that sum, and B, two days afterwards, executes a deed, whereby he covenants that the bond shall not be enforced: some years afterwards, B having become bankrupt, his assignees bring an action on the bond, and file a bill to have the deed of covenant declared fraudulent. Held, that the Court will not interfere against the legal operation of the deed; there being nothing to shew that B was insolvent when he executed it; and there being evidence, that A. had also at that time pecuniary claims on E, and that the execution of the bond was accompanied by an agreement, that payment of it should not be enforced.

Robert Hull Terrell v James Button; 16 Mar 1854

References: [1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Links: Commonlii
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
Statutes: Winding Up Act of 1848

Macmillan Inc v Bishopsgate Investment Trust Plc; Chd 17 Mar 1993

References: Gazette 17-Mar-1993
Evidence given to a liquidator was not discoverable in civil proceedings.
Statutes: Companies Act 1985
This case cites:

  • Appealed to – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

(This list may be incomplete)
Last Update: 11-Nov-15 Ref: 83282

In Re Melinek (A Bankrupt); Bristol and West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt): ChD 10 Apr 1997

References: Times 10-Apr-1997, (1998) 1 BCLC 485
Coram: David Young QC
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consnet should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The court has a free hand in these situations to do what was right and fair. Leave was granted.
Statutes: Insolvency Act 1986 285(3)
This case cites:

  • See also – Scotlife Home Loans (No 2) Limited -v- Melinek and Melinek CA (Bailii, [1997] EWCA Civ 2335)
    The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

This case is cited by:

  • See also – Scotlife Home Loans (No 2) Limited -v- Melinek and Melinek CA (Bailii, [1997] EWCA Civ 2335)
    The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

Harms Offshore AHT ‘Taurus’ Gmbh and Co KG v Bloom and Others: CA 26 Jun 2009

References: [2009] EWCA Civ 632, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Links: Bailii, Times
Coram: Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.
Statutes: Insolvency Act 1986
This case cites:

  • Cited – In Re Oriental Inland Steam Company ex parte Scinde Railway Company CA ((1874) LR 9 Ch App 557)
    The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
    Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
  • Cited – Mitchell -v- Carter ChD ([1997] 1 BCLC 673)
    Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . .
  • Cited – Re Vocalion (Foreign) Ltd ([1932] 2 Ch 196)
    The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action . .
  • Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak and another PC ([1987] 1 AC 871)
    The Board was asked where a civil claim should be tried.
    Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a sufficient . .
  • Cited – Polly Peck International Plc -v- The Marangos Hotel Company Ltd & Others CA (Times 18-May-98, Bailii, [1998] EWCA Civ 789, [1998] 3 All ER 812, [1998] 2 BCLC 185)
    Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
    Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
  • Cited – Barclays Bank -v- Homan CA ([1993] BCLC 680)
    If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .