Company (No. 0012209 of 1991), Re A
| Jurisdiction | England & Wales |
| Date | 1992 |
| Year | 1992 |
| Court | Chancery Division |
Insolvency - Winding up - Petition - Company failing to pay on statutory demand - Company not alleged to be insolvent - Liability disputed - Whether presentation of petition abuse of process - Whether injunction restraining presentation to be granted
Winding up petitions ought not to be used as an alternative to an application for summary judgment under
Where, therefore, a creditor served on a solvent company a statutory demand in respect of a disputed contractual debt and the company applied for an injunction to restrain the creditor from presenting a petition for the winding up of the company: —
Held, that the injunction would be granted and the creditor would be ordered to pay the company's costs of the application on an indemnity basis (post, p. 354G–H).
The following case is referred to in the judgment:
Cornhill Insurance Plc. v. Improvement Services Ltd. [
The following additional cases were cited in argument:
Mann v. Goldstein [
Modern Engineering (Bristol) Ltd. v. Gilbert-Ash (Northern) Ltd. [
Mondel v. Steel (
Pillings (C.M.) & Co. Ltd. v. Kent Investments Ltd. (
ORIGINATING MOTION
By an originating motion dated 25 October 1991, the applicant company sought an order that the respondent company be restrained from presenting whether by itself, its servants or agents or otherwise howsoever any petition for the winding up of the applicant company under the provisions of the
The facts are stated in the judgment.
Nigel Pleming for the applicant.
Howard Palmer for the respondent company.
HOFFMANN J. This is an application to restrain the presentation of a winding up petition. The applicant company is part of a larger property group. Its own accounts for the year to 31 December 1990 show that it has net assets of about £100m. and the group resources are a good deal larger. It is accepted to be solvent and capable of paying the alleged debt on which the petition is proposed to be founded. The respondent company has served a statutory demand, claiming £665,826.50 as being due under the terms of a building contract by which the respondent company was engaged to refurbish an office building in the City of London.
The parties acted on the assumption that they had entered into the J.C.T. standard form of building contract with contractors' design, although by the time the applicant company purported to terminate the contract in October no...
To continue reading
Request your trial
- Re a company (No 00751 of 1992)ex parte Avocet Aviation Ltd
-
Quarry Prods Ltd v Austin Intl Inc.
...[1980] Q.B. 137; [1979] 2 All E.R. 1063, applied. (4) CITV-33, In re, 1992–93 CILR 332. (5) Company (No. 0012209 of 1991), In re a, [1992] 1 W.L.R. 351; [1992] 2 All E.R. 797, dicta of Hoffmann J. applied. (6) Company (No. 0013734 of 1991), Re a, [1992] 2 Lloyd”s Rep. 415; [1993] BCLC 59. (......
-
Angel Group Ltd v British Gas Trading Ltd
...bring the indisputable part below £750): c) A dispute will not be "substantial" if it has really no rational prospect of success: in Re A Company No.0012209 [1992] 1WLR 351 at 354B. d) A dispute will not be put forward in good faith if the company is merely seeking to take for itself credit......
-
Harada Ltd and Another v Commissioners for HM Revenue and Customs
...good faith grounds in relation to the whole of the debt. That test itself is discussed and applied in numerous cases, including Re a Company (No 0012209 of 1991) [1992] 1 WLR 351, which was one of the authorities cited on behalf of the applicants. 17 I find that the applicants have not esta......
-
WINDING UP PETITIONS FOUNDED ON A BONA FIDE DISPUTED DEBT
...supra, note 9, at 541G—H and 546B. 43 Supra, note 15, at 574i—575h. 44 Supra, note 15, at 579c—f. 45 Re a Company (No 0012209 of 1991) [1992] 1 WLR 351; McDonald’s Restaurants Ltd v Urbandivide Co Ltd[1994] 1 BCLC 306 at 316g—317e. See also G B White Pty Ltd v Taylor Railtrack Pty Ltd[1978]......
-
Insolvency Law
...process and a high-risk strategy which may attract an order of indemnity costs against the petitioner (Re A Company (No 0012209 of 1991)[1992] 1 WLR 351 at 354; Re a company (No 00751 of 1992), ex parteAvocet Aviation Ltd[1992] BCLC 869 at 871). Evidence of insolvency 14.13 In Re Dayang Con......