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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

21 SEP 2012

Sparkasse Hilden Ratingen Velbert v Benk & Anor [2012] EWHC 2432 (Ch) (29 August 2012) - bankruptcy annulment and the grounds for making a bankruptcy order.

His Honour Judge Behrens QC has handed down his judgment in Sparkasse Hilden Ratingen Velbert v Benk & Anor [2012] EWHC 2432 (Ch) (29 August 2012). The case concerns the annulment of a bankruptcy order on the ground that the court had no jurisdiction to make the order. As Judge Behrens notes, "The issue is: where was Mr Benk's centre of main interest ("COMI") at the relevant timeEngland or Germany? The relevant petition was a debtor's petition, presented by Mr Benk on 9th April 2010, and the Order was made on 17th June 2010. The bankruptcy was discharged automatically 12 months later." 

After an exhaustive review of the authorities the learned judge concluded:

"To conclude, Mr Benk's COMI was in my judgment in Germany at the time of the presentation of the second bankruptcy petition, and when the Order was made. That is where he was habitually resident, though living temporarily in England. He accepted that he did return to Germany after coming to England, though he said this was not very often. However, habitual residence does not require presence at any particular time, only habit. He had no professional domicile here, as the photography business was window-dressing, with no potential for any significant degree of permanence, and was not at the root of his insolvency. Moreover, it was organised (at least in part) using German connections."

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