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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

26 SEP 2013

(1) Webster (2) Webster v Mackay [2013] EWHC 2571 (Ch)

(Chancery Division, His Honour Judge Purle QC (sitting as a High Court judge), 19 July 2013)

In July 2006, M loaned W and his wife £200,000, repayable with interest of 10% pa on 31 October 2011. M was entitled to demand repayment on giving 1 year's notice. Additional terms gave M a profit share in the business of W and his wife, requiring them to produce accounts to M. In August 2008, M gave notice requiring repayment. Without prejudice to the requirement to repay, M also asserted that W and his wife were in repudiatory breach of the agreement by failing to produce accounts (which was denied). Nonetheless, all parties proceeded on the basis that the agreement was still on foot, with W and his wife acknowledging the debt was due in August 2009. Applications to set aside M's statutory demands were withdrawn. With costs awarded against W and his wife. They opposed the subsequent petition, having made payments of £105,000. Registrar Derrett made bankruptcy orders on 2 March 2012. W and his wife applied to annul the bankruptcies, asserting that the debts upon which the petitions were based were not liquidated debts. Chief Registrar Baister dismissed the applications on discretionary grounds, after concluding that it was strongly arguable that M's claim was for damages only. His Honour Judge Purle QC (sitting as a High Court judge) dismissed their appeals. The loan agreement had not been repudiated by the failure to provide accounts. Even if it had, a debt, including one payable at a future date, remained a debt even after repudiation. The bankruptcy orders were rightly made. There were no exceptional circumstances inviting the Court to review the orders under s 375 of the Insolvency Act 1986, as there was no confidence that the debts due to M and the other creditors would be paid within any reasonable time frame.

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