Debtor (No. 2283 of 1976) Re A
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE BRIDGE,SIR DAVID CAIRNS |
| Judgment Date | 13 April 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0413-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. 2283 of 1976 |
| Date | 13 April 1978 |
[1978] EWCA Civ J0413-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice in Bankruptcy
(Mr. Registrar Wheaton: 1st Appeal)
(Mr. Registrar Parbury: 2nd Appeal)
Lord Justice Buckley
Lord Justice Bridge
and
Sir David Cairns
MR. V.S. MUIR HUNTER Q.C. and MR. C. BROUGHAM (instructed by Messrs. David Lee & Co., Solicitors, London) appeared on behalf of the Debtor (Appellant) on the 1st Appeal and on behalf of the Debtor (Respondent) on the 2nd Appeal.
MR. J. VALLAT (instructed by Messrs. Coward Chance, Solicitors, London) appeared on behalf of the Petitioning Creditors (Respondents) on the 1st Appeal and on behalf of the Petitioning Creditors (Appellants) on the 2nd Appeal.
There are here two appeals before the court; one is an appeal by the debtor against the refusal by Mr. Registrar Wheaton to direct that he, the debtor, should be cross-examined on his affidavits in Spain and the other is an appeal by the petitioning creditor against the refusal by Mr. Registrar Parbury to order that the defendant's affidavits filed in this matter, of which there are two in number, be not admitted in evidence unless he attends for cross-examination.
The history of the matter is this: on 27th July 1976 the petitioning creditor obtained a judgment against the debtor upon a guarantee in a sum of £272,722.83, that action having been commenced in May of that year. On 8th November 1976 the petitioning creditor presented the Petition, and the act of bankruptcy relied upon is set out in paragraph 4 of the Petition in the following terms: "That the (Debtor) within three months before the date of the presentation of this Petition has committed the following act of bankruptcy, namely, that with intent to defeat or delay his creditors the (Debtor), being out of England, remained out of England or otherwise absented himself on or about 1st September 1976 and with like intent has continued to remain out of England or otherwise absent himself down to the date hereof".
The Debtor in his evidence contends that he left England in August of 1975 with the intention of thereafter residing abroad; that he has continued to reside abroad and now is engaged in the business of property development or exploitation in Spain.
The first hearing of the Petition took place on 28th March, when directions were given. At that stage no application was made for cross-examination of the Debtor abroad. On 25th March the Debtor had given notice of his intention to oppose the making ofa receiving order and said that he intended to contend that the Bankruptcy Court had no jurisdiction to make such an order. In support of that contention he had filed an affidavit, sworn on 25th March 1977, in which he had deposed to the fact that on or about 21st August 1975 he had left England with the intention of making his home on the Continent and starting business there, and that he had, at or about that time, resigned his directorships of all companies of which he was a director; and he went on to say that from the time he left England until May 1976 he was travelling round Europe, but that finally in that month he decided to concentrate his business activities in Spain and to reside there permanently. He said: "When I left England in August 1975 ay intention was to reside on the Continent of Europe and not to return to England to live or to carry on business there and that is still my firm intention". In paragraph 6 of the affidavit he said that he had not remained out of England or absented himself from England with the intent of defeating or delaying his creditors, but that he had remained out of England because he left England with the intention of taking up residence abroad, and he put forward a claim to have acquired a domicile of choice in Spain.
A date for the substantive hearing of the Petition had been fixed for some time in the month of May 1977, but by agreement that date was vacated and a new date was fixed at 15th October 1977 for the determination of the dispute raised by the Debtor's notice. The petitioning creditor was then given 21 days within which to file evidence and the Debtor was directed to file evidence within 21 days thereafter. In fact, the petitioning creditor did not file evidence until early in September 1977 and the Debtor filed his second affidavit in answer to that furtherevidence by the petitioning creditor on 1st October 1977. In that affidavit he dealt with various transactions in respect of property in this country and property abroad, and said in paragraph 2 (b) that it was correct that until August 1975 to a substantial extent he had carried on his business through a number of limited companies which he either controlled or in which he had a shareholding. That form of words seems to me to suggest that the Debtor is conceding or recognising that, to some extent at any rate, he did carry on business down to August 1975 on his own account otherwise than through limited companies. I do not think it is necessary for me to refer in any detail to the evidence contained in that affidavit.
On 16th September 1977, and not until that date, the Debtor applied by motion for an order that his cross-examination upon his affidavits should be conducted in Spain. That application came before Mr. Registrar Wheaton on 6th October 1977, only one week before the date fixed for the hearing of the Petition with a view to determining the dispute raised by the Debtor as to the jurisdiction of the bankruptcy court. The registrar then dismissed the application and it is from that dismissal that the Debtor appeals.
On 13th October, that being the date that was fixed earlier, as I have mentioned, the Petition came before Mr. Registrar Parbury, when he adjourned it generally with liberty to apply to restore, on account of the fact that an appeal from Mr. Registrar Wheaton's decision of 6th October was then pending. On 14th December the petitioning creditor applied for a direction that the Debtor's two affidavits be not admitted in evidence unless the Debtor attends for cross-examination thereon; that applicationcame on for hearing before Mr. Registrar Parbury on 19th December, when the registrar declined to make the order sought by the petitioning creditor and continued the adjournment of the petition generally. That is the decision from which the petitioning creditor now appeals.
The objection to the jurisdiction raised by the petitioning creditor is founded upon section 1 (2) (b) and section 4 (1) (d) of the Bankruptcy Act 1914. Under section 1 (2) the question arises whether, at the date of the act of bankruptcy relied upon the Debtor was ordinarily resident, or had a place of residence, in England, and whether at that date he was carrying on business in England personally or by means of an agent or manager. The Petition contains no allegation about carrying on business, or the absence of carrying on business, by the Debtor at any relevant data, but Mr. Vallat for the petitioning creditor submits that that would not exclude the point from consideration. Under section 4 (1) (d) the question arises whether the debtor is domiciled in England or whether within a year before the date of the presentation of the Petition he was ordinarily resident in England or had a dwellinghouse or place of business in England, or carried on business in England personally or by means of an agent or manager. These are...
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