Debtor (No. 340 of 1992), Re A; ex parte The Debtor v First National Commercial Bank Plc
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1995 |
| Date | 28 February 1995 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Stuart-Smith, Lord Justice Waite and Lord Justice Millett
Insolvency - bankruptcy petition - writ "returned unsatisfied"
Where a sheriff returned a writ of fieri facias after failing to gain access to the premises where it was to be executed, execution was not "returned unsatisfied" within section 268(1)(b) of the Insolvency Act 1986 so as to entitle the creditors to present a bankruptcy petition.
The Court of Appeal so held in dismissing an appeal by the creditors, First National Commercial Bank plc and First National Bank plc, from a decision of Mr Justice Aldous (The Times July 19, 1993) whereby the debtor's appeal was allowed against the refusal of District Judge Dimmick at Kingston upon Thames County Court to set aside the creditors' bankruptcy petition.
Mr David Halpern for the creditors; Mr Simon Mortimore, QC and Mr Hashim Reza for the debtor.
LORD JUSTICE MILLETT said that the bankruptcy petition arose out of guarantees given by the debtor to the creditors in 1990 in respect of the debts of a company, Cambridge Trust plc. The guarantees were for a total sum of £800,000.
The company went into receivership in February 1991, with the result that the debtor potentially became liable under the guarantees. The debtor appreciated that he could not pay the sum that might be sought from him and he put forward a voluntary arrangement which was rejected.
In October 1991 the creditors demanded payment. The demand was not met and they obtained summary judgment from Master Gowers against the debtor for £910,071.
On November 11, 1992 the creditors issued a writ of fieri facias which was delivered to the sheriff. He visited the debtor's house on December 10 and 14, 1992 but was unable to gain access. The creditors' solicitors countermanded the execution and the sheriff returned the writ, endorsing it as being "unsatisfied in whole".
The bankruptcy petition which the creditors then served stated that the debtor was...
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Birchshade Farms Ltd. et al., Re, (2000) 225 N.B.R.(2d) 243 (TD)
...Re a debtor (No. 340 of 1992), the debtor of First National Commercial Bank plc , [1994] 3 All E.R. 269, affirmed on other grounds [1996] 2 All E.R. 211. "The line between what constitutes a nullity and an irregularity is sometimes difficult to draw. An irregularity is an error in the ......
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512146 B.C. Ltd. et al. v. Dextras Engineering & Construction Ltd. et al., 2001 BCSC 534
...Re a debtor (No. 340 of 1992), the debtor of First National Commercial Bank plc , [1994] 3 All E.R. 269, affirmed on other grounds [1996] 2 All E.R. 211. "The line between what constitutes a nullity and an irregularity is sometimes difficult to draw. An irregularity is an error in the manne......
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John Malone v Malcolm Tansell (T/a Sealex)
...to the decision of this Court in Re a debtor (No 340 of 1992), ex parte the debtor v First National Commercial Bank plc and another [1996] 2 All ER 211. I therefore would give leave to appeal to enable this court to consider whether the alleged act of bankruptcy was in fact one which could ......