Case Summaries
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26 August 13

Arif v Anwar [2013] EWHC 624 (Fam); [2013] BPIR 389

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(Family Division, Norris J, 21 March 2013)

H was made bankrupt on his own petition shortly after W had presented a divorce petition. W applied to annul the bankruptcy but abandoned it after an unsuccessful appeal to the Court of Appeal (see Arif v Zar [2012] EWCA Civ 986; [2012] BPIR 948). That left the court having to determine the extent of H's property interests, in the face of adverse claims of H's son and also the extent of an alleged debt to a third party. Norris J gave directions for the determination of the extent of the son's beneficial interest in the property and the extent to which H had actually paid off the third party's debt to be determined as preliminary issues in the Family Division, as these issues had to be decided before W could demonstrate that there was a surplus in H's bankruptcy estate against which an ancillary relief order could be made.

26 August 13

HSBC Bank plc v Tambrook Jersey Ltd [2013] EWCA Civ 576; [2013] BPIR 484

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(Court of Appeal, Longmore, McFarlane and Davis LJJ, 22 May 2013)

The Jersey court asked for assistance from the English court under s 426 of the Insolvency Act 1986, requesting the appointment of administrators over a Jersey company which was then not in any form of insolvency proceeding in Jersey and whose Centre of Main Interests (COMI) was not in England and Wales. Mann J dismissed the application on jurisdictional grounds. The Court of Appeal allowed the appeal. The judge had erred in his interpretation of s 426(4). It was not a prerequisite that there should be formal insolvency proceedings existing in the requesting state in order for the section to be engaged, and a broad purposive interpretation was to be given to the section.

26 August 13

Moseley v Solicitors Regulation Authority [2013] EWHC 2108 (Admin)

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(Administrative Court, Lewis J, 28 June 2013)

A bankruptcy order had been made against M, a solicitor, in 2006, following which he had failed to disclose an interest in a property to the Official Receiver. M attempted to sell the interest and although the purchase price was paid to him, the purchasers were unable to register their title because of a restriction entered by the Official Receiver. They sought to recover the money from M, but he had already used it to pay off other accumulated debts. The Solicitors Disciplinary Tribunal held that M had (i) failed to disclose the interest in property; (ii) held himself out as able to deal in the property; (iii) failed to return the money; and (iv) acted in way likely to diminish public trust in the profession, and ordered that he be struck off. Lewis J dismissed M's appeal against the striking off. His conduct showed a lack of integrity and undermined public confidence in the profession even if unconnected to a solicitor's professional duties.

26 August 13

Kremen v Agrest and Chesnokov [2013] EWCA Civ 41; [2013] BPIR 497

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(Court of Appeal, Thorpe and Moore-Bick LJJ, 5 February 2013)

Following their divorce, H was ordered to pay W £12.5m. H's sole asset in this jurisdiction was a property, legally owned by a BVI company incorporated by H to minimise his tax liability. W applied to set aside H's transfer of the share in the company to K (who had then agreed to sell it to C). To C's knowledge, W obtained an injunction to prevent H or the company dealing with the property, but, nonetheless, C proceeded with the transaction. The judge set aside the transactions, on the basis that C could recover the purchase price from A, and further provided for A to indemnify C. C obtained judgment in default against H on the indemnity, but the court refused to make a final charging order in favour of C over the property. The Court of Appeal dismissed C's appeal. Whilst in balancing the interests of a former spouse and a creditor, the interests of the creditor (especially a judgment creditor) had to be respected, the interests of justice in this case required the final charging order to be refused. The judge had been entitled to exercise his discretion to refuse the final charging order.

26 August 13

O’Donnell v the Governor and Company of the Bank of Ireland [2012] EWHC 3749 (Ch); [2013] BPIR 509

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(Chancery Division, Newey J, 21 December 2012)

The debtor and his wife were Irish nationals who presented their own bankruptcy petitions in this jurisdiction asserting that they had moved their COMI to England and Wales. The bank, which had presented bankruptcy petitions against the debtors in Ireland, opposed the making of bankruptcy orders. The usual directions for evidence and trial, to determine COMI, were made. Newey J, applying established principles, dismissed the petitions. Although the debtors intended to live in this jurisdiction, that did not necessarily indicate a change of COMI ascertainable by third parties.