(1) Scott Christian Bevan v (1) Paul Walker
| Jurisdiction | England & Wales |
| Judge | Purle |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWHC 265 (Ch) |
| Date | 15 February 2018 |
| Court | Chancery Division |
| Docket Number | Case no 8055 of 2016 |
[2018] EWHC 265 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
Insolvency and Companies List (ChD)
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ Purle QC
Case no 8055 of 2016
In the Matter of Domestic & General Insulation Limited (“the Company”)
And in the Matter of the Insolvency Act 1986
Mr Paul J Dean instructed by Howes Percival LLP appeared on behalf of the Applicants.
The Respondents did not appear.
HHJ Purle QC:
On 16 th December 2014 the First Respondent was appointed as liquidator of the Company. This was a members' voluntary liquidation preceded by the requisite declaration of solvency. Following an increase by many millions of pounds in the claim of the 4 th Respondent, HMRC, the liquidation was converted into a creditors' voluntary liquidation on 26 th August 2015 and the Applicants were appointed joint liquidators. That meeting was a creditors' meeting convened by the First Respondent.
Section 84(1)(b) of the Insolvency Act 1986 provides that a company may be wound up voluntarily if the company resolves by special resolution that it be wound up voluntarily. That undoubtedly occurred in this case. However, no written notice of the resolution was given to HSBC, which was the holder of a qualifying floating charge. Though the charge may not have been enforceable on 16 th December 2014, so that HSBC may not have been able to appoint an administrator under paragraph 14 of Schedule B1 of the Insolvency Act 1986 (see paragraph 16 of the same Schedule) it existed.
The Applicants became concerned as to the validity of their appointment, which in turn depended upon the validity of the First Respondent's appointment as liquidator, as he only had capacity to convene a creditors' meeting if validly appointed himself. I determined that the original resolution and the successive appointments of liquidators were valid for reasons which I would give later. These are those reasons.
Section 84(2A) of the Insolvency Act 1986 provides that a company “must” give written notice to the holder of any floating charge to which section 72A applies.
Section 72A in turn adopts the meaning of “holder of a qualifying floating charge” in paragraph 14 of Schedule B1. That meaning sets out the formal requirements of qualification in paragraph 14(2). They apply to the HSBC charge. The Applicants accept that the HSBC charge was a qualifying floating charge and that notice of the resolution to wind up should therefore have been given.
Although the indications are that the charge was not enforceable at the time, that did not dispense with the requirement to give notice, the object of which is to give the charge holder the opportunity to appoint an administrator before the...
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