Martin Lester (Applicant v Phillip Wedgewood Wallace (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON |
| Judgment Date | 19 October 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1019-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0911 |
| Date | 19 October 1990 |
[1990] EWCA Civ J1019-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Vinelott)
Royal Courts of Justice
Lord Justice Dillon
90/0911
MR, B. BHALLA (instructed by Messrs Rimmers Boyle & Ormerod, Aylesbury, Bucks) appeared on behalf of the Applicant (Appellant).
MR. J.M.A. DeBURGOS (instructed by Messrs Rakisons) appeared on behalf of the Respondent (Respondent).
This is an application by Mr. Lester for leave to appeal against an order of Mr. Justice Vinelott of the 5th December 1989. The matter arises in proceedings under the Insolvency Act in relation to Mrs. Ruth Penrose Lester, who is Mr. Lester's former wife, and is concerned with proxies tendered by Mr. Lester at an adjourned meeting of creditors of Mrs. Lester, which was held on 8th August 1989. Certain proxies tendered by Mr. Lester at that meeting were queried and subsequently decided by the Aylesbury County Court not to have been admissible. Mr. Lester's application to Mr. Justice Vinelott was by way of appeal against the decision of the County Court judge in relation to those proxies.
The respondent to the present application is a Mr. Wallace, a Chartered Accountant and Licensed Insolvency Practitioner, who is a partner in the firm of KPMG Peat Marwick McLintock.
The history of the matter is that Mrs. Lester, who had been trading, made an application in May 1989 to the Aylesbury County Court for an interim order pursuant to section 253 of the Insolvency Act 1986. A voluntary arrangement was prepared. Mr. Wallace was the supervisor under that arrangement and an order was made for a meeting of Mrs. Wallace's creditors to be called for 25th July 1989 to vote on that voluntary arrangement. In fact on the 25th July 1989 the meeting was adjourned to enable additional information to be obtained with regard to Mrs. Lester's affairs and for a further valuation to be obtained of certain land at Stone, in Buckinghamshire, which was the principal available asset. It is not, I think, in doubt that the desirability or otherwise of the voluntary arrangement depended very much on what could be achieved in relation to the land at Stone. It had been jointly owned by Mr. and Mr. Lester but there had been directions for sale in the divorce proceedings and for the net proceeds to go to Mrs. Lester.
Mr. Lester had obtained proxies from certain creditors, which were accepted, and certainly one of them. Whites Mobile Welding, had been delivered before the original meeting. On the day of the adjourned meeting two further proxies were tendered by Mr. Lester from two creditors, M.F. Sabin and Frontline (Waste) Co. In the notice of the adjournment of the meeting to the 8th August it was stated that proxies would have to be lodged not later than 12 noon on 7th August. So far as the two creditors, Sabin and Frontline (Waste), were concerned, faxes of their proxies were received by Peat Marwick from the solicitors acting for Mr. Lester in the morning of the 7th August, but the solicitors were told that the proxies would be excluded unless the original proxies were received by 12 noon on 7th August. The original proxies did not come to hand until 2 o'clock on 7th August. That is understandable. Therefore those proxies were excluded, and two others with which Mr. Lester was not concerned, which were received too late, were also excluded. The chairman of the meeting left it to the county court judge to hold whether receipt of faxes of the proxies in time was sufficient. The judge ruled that it was not.
On the figures of the voting, excluding the late proxies but including the two tendered by Mr. Milner, the resolution approving the voluntarily arrangement was carried by an ample majority and not a bare three-quarters majority, but if the two excluded proxies tenderered by Mr. Lester had been taken into account, it would seem to have been defeated, though there are one or two extra questions that arise on that as one of the creditors concerned may have been a secured creditor.
Mr. Lester appealed to the court and his appeal came before Mr. Justice Vinelott. At the hearing before Mr. Justice Vinelott his locus standi was challenged. It was common ground that he had to satisfy section 262 of the Insolvency Act 1986, which provides: "…an application to the court may be made, by any of the persons specified below, on one or both of the...
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