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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

09 JAN 2012

New BPIRs - [2011] BPIR 1547 - 1814 Number 6 - the Editors strike again with another set of interesting cases for our consumption

They editors of the BPIRs have served up another set of interesting cases. Here are the catchwords: 

[2011] BPIR 1547

Abernethy v Hotbed Ltd [2011] EWHC 1476 (Ch)

ChD, Newey J, 20 May 2011

– STATUTORY DEMAND – Application to set aside statutory demand – Genuine triable issue – Admission of new evidence – Civil Procedure Rules 1998, r 52.3 

 

[2011] BPIR 1555

Adeosun v Her Majesty’s Revenue and Customs [2011] EWHC 1577 (Ch)

ChD, Vos J, 8 April 2011

– BANKRUPTCY ORDER – Permission to appeal – Real prospect of success – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6 

 

[2011] BPIR 1563

Adjei and Others v Law For All [2011] EWHC (Ch) 2672

ChD, Norris J, 19 October 2011

– ADMINISTRATION ORDER – Invalid appointment – Retrospective administration order – Whether to validate administrators’ interim acts and remuneration – Costs 

 

[2011] BPIR 1568

British Arab Commercial Bank plc and Others v Ahmad Hamad Algosaibi and Brothers Co and Others [2011] EWHC 2444 (Comm)

QBD, Flaux J, 29 September 2011

– CHARGING ORDERS – Whether, if interim charging order was to be made final, a creditor who first obtained the interim order should be given priority over other creditors with similar later interim orders

– CHARGING ORDERS – Absence of statutory insolvency scheme – Whether first past the post rule applied to determine priority between those with benefit of interim charging orders

– PRIORITY BETWEEN COMPETING CHARGING ORDERS – Whether first past the post rule could be displaced through exercise of judicial discretion 

 

[2011] BPIR 1590

Commissioners for Her Majesty’s Revenue and Customs v (1) Earley (2) Heron (3) Fisher [2011] EWHC 1783 (Ch)

ChD, Sir Andrew Morritt (Chancellor of the High Court), 11 May 2011

– INDIVIDUAL VOLUNTARY ARRANGEMENT – Material irregularity – Creditor prevented from voting at creditors’ meeting due to improperly obtained injunction – Insolvency Act 1986, s 262(1)(b) – Insolvency Rules 1986, rr 5.21(2), 5.22(3), (4)

– INDIVIDUAL VOLUNTARY ARRANGEMENT – Unfair prejudice – Proposal reduced the amount of creditor’s debt without any justification, thereby reducing its voting entitlement, and its right to receive payments under the IVA – Insolvency Act 1986, s 262(1)(a) – Insolvency Rules 1986, r 5.22

– JURISDICTION – Whether High Court had jurisdiction to hear application in respect of undischarged bankrupt where bankruptcy order made in the county court – County Courts Act 1984, s 41(1) 

 

[2011] BPIR 1604

Commissioners for Her Majesty’s Revenue and Customs v Rochdale Drinks Distributors Ltd [2011] EWCA Civ 1116

CA, Pill, Rimer and Lewison LJJ, 13 October 2011

– PROVISIONAL LIQUIDATOR – Circumstances under which appointment of a provisional liquidator was appropriate – Whether ex parte application was appropriate 

 

[2011] BPIR 1639

Interedil Srl (In Liquidation) v Fallimento Interedil Srl and Intesa Gestione Crediti SpA (Case C-396/09)

CJEU, A Tizzano (President of The Chamber), M Safjan, A Borg Barthet, M Ilesic, M Berger (Rapporteur), Judges J Kokott (Advocate General) and A Impellizzeri (Administrator), 20 October 2011

– PRELIMINARY RULING – Council Regulation (EC) No 1346/2000 on Insolvency Proceedings – Location of debtor’s centre of main interests (COMI) – Presumption that COMI of a debtor company was located where registered office was to be found – Circumstances under which that presumption could be rebutted.

– COUNCIL REGULATION (EC) NO 1346/2000 ON INSOLVENCY PROCEEDINGS – Meaning of ‘establishment’

– EU LAW – Whether a lower national court obliged to follow higher national court where doubts existed as to the latter’s interpretation of EU law

 

[2011] BPIR 1653

Jones v Kernott [2011] UKSC 53

SC, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore, Lord Wilson of Culworth, 9 November 2011

– PROPERTY – Joint ownership – Unmarried couple – Cohabitation – Declaration that property held as beneficial joint tenants on acquisition – Separation – No other express agreement as to beneficial interests in the property – Whether beneficial interests changed post-separation – Trusts of Land and Appointment of Trustees Act 1996

 

[2011] BPIR 1680

Kapoor v (1) National Westminster Bank plc (2) Tan [2011] EWCA Civ 1083

CA, Pill and Etherton LJJ and Sir Mark Potter, 5 October 2011

– 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)

– 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 1706

Re Kaupthing Singer and Friedlander Ltd [2011] UKSC 48

SC, Lord Hope of Craighead (Deputy President), Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Clarke of Stone-cum-Ebony JJSC and Lord Collins of Mapesbury, 19 October 2011

– RULE AGAINST DOUBLE PROOF – Application to cases of administration

Rule in Cherry v Boultbee – Whether excluded by rule against double proof

 

[2011] BPIR 1724

(1) Namulas Pension Trustees Ltd (2) Boyd v (1) Mouzakis (2) Mouzakis (3) Hogg (4) Grant

Chesterfield CC, District Judge Stark, 9 August 2011

– INDIVIDUAL VOLUNTARY ARRANGEMENTS – Material irregularity – Notice of meeting – Whether notice to creditor’s solicitors compliant – Whether notice to one of two closely connected creditors compliant – Whether deficiencies irregular – Whether irregularities material – Insolvency Act 1986, ss 257, 258, 260, 262(1)(b) – Civil Procedure Rules, r 6.23(1), (2) – Insolvency Rules 1986, rr 12A.3, 12A.5

 

[2011] BPIR 1736

Sofaer v Anglo Irish Asset Finance plc [2011] EWHC 1480 (Ch)

ChD, Lewison J, 26 May 2011

– INDIVIDUAL VOLUNTARY ARRANGEMENT – Voting – Decision of chair of creditors’ meeting to admit vote but marked as objected to – Whether chair obliged to place a £1 value on such vote or admit for full amount

– INDIVIDUAL VOLUNTARY ARRANGEMENT – Voting rights of creditors – Whether events occurring after meeting could affect voting rights of creditors at meeting

Guarantees and indemnities – Nature of liability undertaken

 

[2011] BPIR 1743

Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Ltd and Others [2011] UKPC 17

PC, Lord Hope of Craighead, Lord Mance, Lord Collins of Mapesbury, Lord Clarke of Stone-cum-Ebony, and Lord Reed, 21 June 2011

– EXECUTION – Discretionary trusts – Power of revocation reserved to settlor – Whether power to appoint receiver by way of equitable execution over the power of revocation – Whether discretion to be exercised in favour of such appointment – Senior Courts Act 1981, s 37(1)

 

[2011] BPIR 1761

Williams (Trustee of the Insolvent Estate of John Owen Napier Lawrence Deceased) v (1) Lawrence (2) Lawrence [2011] EWHC 2001 (Ch)

ChD, His Honour Judge David Cooke (sitting as a Judge of the High Court), 28 July 2011

– INSOLVENCY ADMINISTRATION ORDER – Post-death disposition by executors – Whether void disposition – Whether ratifiable – Insolvency Act 1986, s 284

 

[2011] BPIR 1787

Williams (Trustee of the Property of Nassim Mohammed) v Mohammed [2011] EWHC 3293 (Ch)

ChD, His Honour Judge Hodge QC (sitting as a High Court judge), 16 March 2011

– BANKRUPTCY – Disclosure – Privilege – Iniquity Exception – Inspection by the court

 

[2011] BPIR 1802

Zinda v Bank of Scotland plc [2011] EWCA Civ 706

CA, Mummery and Munby LJJ and Hedley J, 23 June 2011

– MORTGAGE – Consolidation of arrears – Possession order – Administration of Justice Act 1970, s 36 – Administration of Justice Act 1973, s 8

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