Levy (Trustee in Bankruptcy of Ellis-Carr) v Ellis-Carr and Another [2012] EWHC 63 (Ch); [2012] BPIR 347

01 May 2012

(Chancery Division, Norris J, 23 January 2012)

A property was registered in the joint names of EC and his mother. A bankruptcy order was made against EC in 1994. The bankruptcy proceeded on the basis that EC had a 50% interest in the property, with EC enquiring how he might acquire the trustee's interest in the property. EC later asserted that the entire beneficial interest in the property was owned by his mother. The trustee attempted to dispose of his interest to the mother, but was compelled to issue proceedings by s 283A of the Insolvency Act 1986. In 2007 the registrar declared that the property had been owned by EC and his mother as beneficial tenants in common in equal shares, and ordered a sale. The mother then died intestate, and in 2010 the trustee issued a further application, seeking affirmation of the 2007 order, a further order for sale and an occupation rent from EC, who was joined in his capacity as the personal representative of his mother's estate. In EC's absence, having refused a request for an adjournment, the registrar confirmed the 2007 order, ordered sale and awarded an occupation rent against the mother's estate. Norris J dismissed EC's appeal. Following Bank of Scotland v Pereira [2011] EWCA Civ 241, EC should really have applied to set aside the registrar's order, rather than appeal it. The registrar had been right to refuse the adjournment, and there were no limitation difficulties as the 3-year time limit under s 283A did not apply to enforcement of the 2007 order. The registrar had been correct in affirming the declaration as to beneficial interests and to order an occupation rent.