Ex parte Sidebotham. Re Sidebotham
| Jurisdiction | England & Wales |
| Date | 1879 |
| Year | 1879 |
| Court | Court of Appeal |
Appeal - Locus Standi - “Person aggrieved” - Refusal of Court to act on Report by Comptroller in Bankruptcy of Misfeasance of Trustee -
When the Court has refused to act on a report by the Comptroller in Bankruptcy that the trustee in a bankruptcy has been guilty of a misfeasance, neglect, or omission, by which the estate has sustained a loss which the trustee ought to make good, neither the bankrupt nor any of the creditors is entitled to appeal from the refusal.
The Comptroller alone is entitled to appeal.
If the trustee has been guilty of a misfeasance, either the bankrupt or any of the creditors is entitled to make an application of his own to the Court under sect. 20, and, if the person so applying is dissatisfied with the order made, he has a right to appeal from it.
NATHAN SIDEBOTHAM and James Marsh, who carried on business in partnership at Ashton-under-Lyne as the Barnfield Ironworks Company, were adjudicated bankrupts in the Ashton County Court on the 21st of November, 1873. The proceedings were afterwards transferred to the Manchester County Court.
On the 6th of March, 1879, the Comptroller in Bankruptcy made a report to the Court, in which he stated that complaint had been made to him by several creditors of the bankrupts that the trustee in the bankruptcy had not faithfully performed his duties, and had not duly observed the requirements imposed on him by the statute, rules, and otherwise; that the trustee and other persons had been examined on oath; that the Comptroller had inquired into the matters complained of, and had required the trustee to answer certain requisitions; and that he had called upon the trustee to make good an alleged loss to the bankrupts' estate, and the trustee had failed to comply with such requisitions, but had tendered an explanation of the manner in which he had dealt with the estate, contending that he had realized the full value thereof. The report further stated that the Comptroller was of opinion that the explanations and contentions of the trustee were not satisfactory. And the Comptroller reported to the Court that the trustee had (inter alia) failed to comply with a requisition to credit the estate with a sum of £1253, being the loss which, in the opinion of the Comptroller, the estate of the bankrupts had sustained by the misfeasance, neglect, or omission of the trustee.
The debts of the bankrupts amounted to about £2200; the trustee had realized assets to the extent of about £1200.
Upon this report the Comptroller applied to the County Court to enforce the requisitions with which the trustee had not complied. The Judge refused to make any order in relation to the sum of £1253 mentioned in the report. The Comptroller did not appeal from this refusal, but the bankrupt Sidebotham, who had not obtained an order of discharge, appealed to the Chief Judge.
The appeal came on for hearing on the 4th and 5th of August, 1879.
E. Cooper Wills, for the Appellant:—
The bankrupt is a “person aggrieved” by the order within the meaning of sect. 71, and has a right to appeal from it. If the trustee had accounted for the £1253, the estate could have paid 20s. in the pound.
S. Taylor, for the trustee:—
The Appellant, being an undischarged bankrupt, has no locus standi to appeal: Ex parte SheffieldF2. Whether the Comptroller himself could or could not appeal, at any rate no one else but a creditor could do so: Ex parte DittonF3.
BACON, C.J., ordered that the trustee should forthwith call a meeting of the creditors for the purpose of considering the report of the Comptroller, and the several matters arising therein, and of passing such resolutions in relation thereto as the meeting might think fit, including the question of the removal of the trustee and committee of inspection and the appointment of an additional or new trustee and committee, and for taking such steps (if any) in reference to the matters aforesaid as might be resolved upon.
And the further consideration of the appeal was ordered to stand over.
A meeting of the creditors was accordingly held on the 14th of November, 1879, when (inter alia) a resolution was passed by a majority in value of the creditors present, that the meeting, having considered the report of the Comptroller, was of opinion that the conclusions arrived at by him were perfectly justifiable upon the facts of the case, and desired to express their entire satisfaction with that report, and required the trustee to submit to the report, and to bring in and pay to the creditors of the estate the money therein required to be paid by him. Resolutions were also passed by a majority in number and value of the creditors present removing the trustee and the committee of inspection, but they were not passed by the proper majority of three-fourths in value.
The appeal came on again for hearing on the 15th of December, 1879.
E. Cooper Willis, for the Appellant.
Winslow, Q.C., and S. Taylor, for the trustee.
Abrahams, for the Comptroller.
BACON, C.J.: —
What can I do with this appeal? I sent it back on the last occasion to have a meeting of the creditors held, because I did not think that the bankrupt had any locus standi to appeal. I desired that the opinion of the creditors should be taken at a meeting. That meeting has been held, and resolutions have been passed agreeing with the report of the Comptroller; and that is all. I had hoped that...
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