On 20 October 2017 Registrar Derrett handed down judgment in the case of Thomas v Haederle (unreported), in which she gave reasons for dismissing a bankruptcy petition presented by the debtor (T) in the County Court at Norwich on 4 December 2014, pursuant to s 272 of the Insolvency Act 1986 (IA86), as it then was.
On 25 October 2017, the Accountant in Bankruptcy (AIB) published its insolvency statistics for the latest quarter, July to September 2017.
The recent case of Breyer Group plc v RBK Engineering Limited considered the use of winding up petitions in construction contracts.
An application was made by Breyer to stop RBK from continuing with a petition to wind up the company. The court decided that winding up petitions can operate as a form of commercial oppression and may not be appropriate, especially when adjudication or ordinary proceedings would be a more appropriate forum for the dispute.
The background
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Property Analysis: A recent Court of Appeal decision on the payment of service charges, while correct in principal, was wrong on the facts, according to Peter Petts, barrister at Hardwicke Chambers.
Original News
Skelton and others v DBS Homes (Kings Hill) Ltd [2017] EWCA Civ 1139, All ER (D) 196 (Jul)
This article was first published in Insolvency Intelligence 2017 30(6) and is now available on Westlaw.
The High Court confirmed that it is generally not appropriate to present a winding up petition to recover sums due under a construction contract, particularly where those sums are disputed or there is a legitimate cross claim.
A professional negligence claim against trustees in bankruptcy alleging that they had unnecessarily prolonged the bankruptcies and caused the bankrupts’ loss failed. The Trustees had agreed not to take steps in the bankruptcies while Dr Oraki and her husband made repeated applications to set aside the judgment upon which their bankruptcy orders were made and annul their bankruptcies under s 282(1)(a) of the Insolvency Act 1986, which they eventually succeeded in doing.
'B’ appealed an Insolvency Act 1986 (IA 1986) s 279(3) order suspending her discharge from bankruptcy until ‘T’ confirmed B had complied with her IA 1986 duties. B traded through a company, which entered voluntary liquidation in November 2014. B’s personal guarantee of company debt led to a bankruptcy order in February 2015.
This case arose from the ongoing administration of Lehman Brothers International (Europe) (‘LBIE’). The appeal considered the proper ranking of certain subordinated debt in the insolvency ‘waterfall’, among other matters.
Held
The first issue concerned the construction of debt instruments subordinated to amounts ‘payable in the insolvency’. It was held that such amounts included statutory interest and non-provable debts, and accordingly those liabilities must be met before any balance could be used to pay off the subordinated loans.