Die Sparkasse Bremen Ag v Amutcu
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe |
| Judgment Date | 11 June 2013 |
| Neutral Citation | [2013] EWCA Civ 930 |
| Docket Number | Case No: A2/2012/3068 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2013 |
[2013] EWCA Civ 930
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MRS JUSTICE PROUDMAN)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice McCombe
Case No: A2/2012/3068
Mr Adrian Jack (instructed by Stafford Law Ltd) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal against the order of Proudman J of 6 November 2012 dismissing the present applicant's appeal from the order of Deputy Bankruptcy Registrar Middleton of 31 August 2011 annulling a bankruptcy order made in respect of the applicant on his own petition on 20 March 2009.
The applicant before this court is a Mr Mehmet Armutcu. Throughout this judgment I will be referring to him as "the applicant".
Permission to appeal to the Court of Appeal was refused by Patten LJ on the papers by an order made on 26 February of this year. The proposed appeal would be a second appeal. It is therefore necessary for the applicant to satisfy me that it is an appeal raising an important point of principle or practice, or that there is some other compelling reason for the appeal to be heard.
It goes without saying that it is also necessary for the applicant to persuade the court, as he would do on an application for a first appeal, that the proposed appeal has real prospects of success, or that there is some other compelling reason for the appeal to be heard in that sort of case.
On the facts, in short, the applicant is a Turkish citizen who was for many years resident in Germany where he worked and where he had his matrimonial home. I think it is right to say this that the course of his bankruptcy proceedings his wife remained a resident in Germany. He presented his petition here under section 265 of the Insolvency Act 1986 on the basis of his presence in this country and, as I understand it, his residence here. Of course, section 265 is subject to Article 3 of EC Regulation 1246/2000 EC (see section 265(3) of the 1986 Act). Under that regulation, the primary basis of jurisdiction in bankruptcy is what is known as "the centre of the debtor's main interest", known as "COMI" for short. Under domestic rules of English law the applicant was discharged from bankruptcy after a year, namely on 20 March 2010. On 21 September 2010 the respondent, a German bank known as the Die Sparkasse Bremen Aktiengesellschaft, in other words the Bremen Municipal Savings Bank, claiming as a creditor of the applicant, applied for annulment of the bankruptcy under section 282(1)(a) of the 1986 Act on the ground that the order ought not to have been made.
The grounds of this application were, first, that at the time of the petition the applicant's COMI was Germany and not England and Wales, and secondly, further and in any event the applicant was guilty of material non-disclosure on the without notice application for the bankruptcy order. The Deputy Registrar upheld those grounds of application on the evidence before him. In short, he found that the applicant's habitual residence was in Germany, and that on all the evidence, taken as a whole, his COMI was Germany rather than here. He also held that the applicant had mis-stated circumstances relating to his centre of interest in his supporting statement of affairs lodged for the purposes of the bankruptcy order.
The...
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