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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

13 JUL 2011

Latest edition of the BPIRs - [2011] BPIR 583-956 Number 3

The learned editors of the BPIRs have come up with another set of very interesting cases. Here are the headline details with citations and catchwords: 

"[2011] BPIR 583 

Brook v Reed (Trustee in Bankruptcy of the Estate of Brook) [2011] EWCA Civ 331 

CA, Arden and Black LJJ and David Richards J, 25 March 2011 

- BANKRUPTCY - Trustee in bankruptcy - Remuneration - Practice Statement: The Fixing and Approval of the Remuneration of Appointees 2004 


[2011] BPIR 608 

Child Maintenance and Enforcement Commission v Beesley and Whyman [2010] EWCA Civ 1344 

CA, Ward, Etherton and Tomlinson LJJ, 24 November 2010 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Creditor - Bankruptcy debt - Child maintenance support - Insolvency Act 1986, ss 382 and 383 


[2011] BPIR 626 

Cosco Bulk Carrier Co Ltd v (1) Armada Shipping SA (2) STX Pan Ocean Co Ltd [2011] EWHC 216 (Ch) 

ChD, Briggs J, 11 February 2011 

- CROSS-BORDER INSOLVENCY - Swiss bankruptcy of Swiss company recognised in England by recognition order - Company chartered vessel under time charter, and sub-chartered to a third party - Dispute as to entitlement to receive sub-hire payments - Whether disputes to be determined by London arbitration or Swiss proceedings - UNCITRAL Model Law on Cross-Border Insolvency, Arts 2, 15.1, 20, 21, 22 - Cross-Border Insolvency Regulations 2006, paras 2(1), 2(2), Schs 1, 2 


[2011] BPIR 644 

Global Distressed Alpha Fund 1 Ltd Partnership v PT Bakrie Investindo [2011] EWHC 256 (Comm) 

QBD, Teare J, 17 February 2011 

- CROSS-BORDER INSOLVENCY - Loan notes guaranteed by Indonesian company - Guarantee governed by English law - Debt reorganisation composition plan approved by Indonesian court in respect of the company - Whether such composition discharged liability under the guarantee - Application of universality principles 


[2011] BPIR 656 

Hargreaves (Trustee in Bankruptcy of Salt) v Salt [2010] EWHC 3549 (Fam) 

FD, His Honour Judge Cooke (sitting as a High Court judge), 18 November 2010 

- BANKRUPTCY - Whether transaction constituted a transaction at an undervalue contrary to s 339 of the Insolvency Act 1986 - Whether transaction carried out under pressure - Valuation of consideration - Remedies - Rights of third parties 

- DIVORCE - Ancillary relief - Transactions designed to defeat claim for ancillary relief - Utility of s 37 of the Matrimonial Causes Act 1973 where one spouse was bankrupt 


[2011] BPIR 691 

Her Majesty's Revenue and Customs v Chamberlin [2011] EWCA Civ 271 

CA, Sir Andrew Morritt (Chancellor of the High Court), Toulson and Sullivan LJJ, 22 March 2011 

- BANKRUPTCY - Annulment - Value Added Tax - Insolvency Act 1986, s 282 


[2011] BPIR 702 

Re Hiwa Huck; Official Receiver v Hiwa Huck 

ChD, Chief Registrar Baister, 10 December 2010 

- BANKRUPTCY - Debtor petition - EC Regulation on Insolvency Proceedings (1346/2000) - Whether debtor had centre of main interests in the jurisdiction when petition presented 


[2011] BPIR 718 

Horler v (1) Rubin (2) David Rubin & Partners (A Firm) (3) Millar (4) David Rubin & Co [2011] EWHC 453 (Ch) 

ChD, His Honour Judge Raynor QC (sitting as a High Court judge), 11 February 2011 

- BANKRUPTCY - Assets - Dispute as to whether assets beneficially owned by the bankrupt, a partnership of which he was partner or a third party - Notification of claim to trustee in bankruptcy - Disposal of such assets by trustee prior to determination of claim - Assets found to be partnership assets - Liability of trustee in bankruptcy as constructive trustee for applying proceeds to dividends, remuneration and expenses - Whether trustee had reasonable grounds for believing that he was entitled so to act - Insolvency Act 1986, s 304(3) 


[2011] BPIR 768 

Re Korffer; Sparkasse Hannover v The Official Receiver and Korffer 

ChD, Chief Registrar Baister, 15 February 2011 

- BANKRUPTCY - Debtor petition - Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings - Whether debtor had centre of main interests in jurisdiction when petition presented - Factors to be considered 


[2011] BPIR 788 

Lomas and Others (Together the Joint Administrators of Lehman Brothers International (Europe) (In Administration)) v JFB Firth Rixson Inc and Others [2010] EWHC 3372 (Ch) 

ChD, Briggs J, 21 December 2010 

- ADMINISTRATORS - Application for directions - Construction of interest swap agreements 

ISDA MASTER AGREEMENT - Relationship with individual swaps agreements - Potential for introduction of implied terms 

- ANTI-DEPRIVATION PRINCIPLE IN INSOLVENCY LAW - Whether s 2(a)(iii) of the ISDA Master Agreement infringed that principle 

Relief against forfeiture - Whether available 

- PENALTIES - Whether applicable in cases where there was no breach of contract 


[2011] BPIR 824 

Macpherson v Wise [2011] EWCA Civ 399 

CA, Patten LJ, 12 April 2011 

- STATUTORY DEMAND - Application to set aside statutory demand - Substantial grounds for dispute 

- LEGAL PROFESSIONAL PRIVILEGE - Disclosure of privileged information by a party's former solicitor - Breach of confidence - Restraint of disclosure of the privileged information 


[2011] BPIR 836 

National Westminster Bank plc v (1) Kapoor (2) Tang [2011] EWHC 255 (Ch) 

ChD, His Honour Judge Hodge QC (sitting as a High Court judge), 20 January 2011 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Challenge to approval - Application out of time - Extension of time - Whether to be granted - Insolvency Act 1986, ss 262(3), 376 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Meaning of material irregularity at or in relation to creditors' meeting - Requirement of good faith and transparency - Insolvency Act 1986, s 262(1) 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Creditors' meeting - Entitlement to vote - Unliquidated or unascertained debt - Obligations of chairman - Insolvency Rules 1986, rr 5.21(1)-(3) 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Creditors' meeting - Admission of claims - Obligations of chairman - Role of court on appeal against chairman's decision - Insolvency Rules 1986, r 5.22(3) 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Creditors' meeting - Requisite majorities - Extent to which votes of associated creditors discounted - Insolvency Rules 1986, rr 5.23(1)-(4) 

- CREDITOR - Assignment of debt - Whether assignment absolute or equitable - Debt held on trust for unassociated assignee by associated assignor - Chairman allowing vote of unassociated assignee - Whether material irregularity - Law of Property Act 1925, s 136 - Insolvency Act 1986, s 262(1) - Insolvency Rules 1986, r 5.23 

- INDIVIDUAL VOLUNTARY ARRANGEMENT - Assignment of debt from associated company to unassociated third party for purpose of avoiding requirements re associated debt - Whether in good faith and transparent - Whether material irregularity - Insolvency Act 1986, s 262(1) 


[2011] BPIR 876 

Stanley and Wood (As Joint Liquidators of New Grass of Manchester Ltd) v TMK Finance Ltd and Another [2010] EWHC 3349 (Ch) 

ChD, David Richards J, 21 December 2010 

- TRANSACTION AT AN UNDERVALUE - Valuation - Whether sale of land by company at significant undervalue - Insolvency Act 1986, s 238(4)(b) 


[2011] BPIR 918 

Trustee of the Property of Gledhill (A Bankrupt) v Gledhill and Another 

ChD, 18 January 2011, District Judge Saffman 

- BANKRUPTCY - Family home - Constructive Trust - Beneficial interests - Sale and possession 


[2011] BPIR 938 

Williams v Simpson 

NZ HC, Heath J, 17 September 2010 

- CROSS-BORDER INSOLVENCY - English trustee in bankruptcy seeking assistance from New Zealand court - Interim relief sought pending formal recognition - Whether interim relief could take form of warrant to search premises in which assets were alleged to be hidden - New Zealand Insolvency (Cross-border) Act 2006 ."

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