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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

26 AUG 2013

Kremen v Agrest and Chesnokov [2013] EWCA Civ 41; [2013] BPIR 497

(Court of Appeal, Thorpe and Moore-Bick LJJ, 5 February 2013)

Following their divorce, H was ordered to pay W £12.5m. H's sole asset in this jurisdiction was a property, legally owned by a BVI company incorporated by H to minimise his tax liability. W applied to set aside H's transfer of the share in the company to K (who had then agreed to sell it to C). To C's knowledge, W obtained an injunction to prevent H or the company dealing with the property, but, nonetheless, C proceeded with the transaction. The judge set aside the transactions, on the basis that C could recover the purchase price from A, and further provided for A to indemnify C. C obtained judgment in default against H on the indemnity, but the court refused to make a final charging order in favour of C over the property. The Court of Appeal dismissed C's appeal. Whilst in balancing the interests of a former spouse and a creditor, the interests of the creditor (especially a judgment creditor) had to be respected, the interests of justice in this case required the final charging order to be refused. The judge had been entitled to exercise his discretion to refuse the final charging order.

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