Park Associated Developments Ltd ((in Liquidation), by Its Liquidator Jamie Taylor) and Another v Kinnear & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 10 April 2013 |
| Neutral Citation | [2013] EWHC 3617 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: HC10C03052 |
| Date | 10 April 2013 |
[2013] EWHC 3617 (Ch)
Mr Justice Newey
Claim No: HC10C03052
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Royal Courts of Justice
7 Rolls Buildings
London EC4A 1NL
Mr A Learmonth appeared on behalf of the Claimant
The Defendants appeared in person
Approved Judgment
I have before me an application for summary judgment. The application is brought by a company called Park Associated Developments Limited, acting, it is said, by its liquidator, and also by that liquidator, Mr Jamie Taylor. The application is directed at the second and third defendants to proceedings that have been instituted by Mr Taylor. The defendants in question are Mr Anthony Kinnear and Mr Peter Mitty.
The background in brief is this. Mr Kinnear and Mr Mitty are both former directors of Park Associated Developments Limited (which I shall call "Park"). Park undertook the development of some 12 plots of land in Huyton. In 2004 two winding up petitions were presented against the company. That with which I am principally concerned is a petition presented on 5 May 2004 by Byrne Hire and Sales Limited. The petition was advertised on 6 July 2004 and a winding up order was made in respect of it in Newcastle District Registry on 28 September 2004. In accordance I think with normal practice, the winding up recorded by way of note that the Official Receiver attached to the court was, by virtue of the order, liquidator of the company. That the Official Receiver should have become liquidator of the company in any event follows from section 136 of the Insolvency Act 1986. At that stage the individuals who had hitherto been the directors of the company ceased to be such. That is apparent from, for example, In Re Ebsworth and Tidy's Contract (1889) 42 Ch D 23, at page 43, and Measures Bros Ltd v Measures [1910] 2 Ch 248, at page 256.
Despite that, transfers were subsequently executed in respect of four of the plots comprised in Park's development. The transfers in question are both dated 16 November 2004. One of them was of plots 2 and 4 and provided for those plots to be transferred to Mr Kinnear. The other relevant transfer was of plots 3 and 6 and provided for those plots to be transferred to Mr Mitty. Both transfers were purportedly signed by Mr Kinnear as a director of Park and by Mr Mitty as the company's secretary. Both transfers stated that £190,000 was payable for each pair of plots, but Mr Alexander Learmonth, who appeared for the liquidator, explained to me, and in this he is supported by the evidence available to me, that the only way in which the company could in fact be said to have benefited at that stage from the transfers was that sums outstanding on a pre-existing charge in favour of an entity referred to as Pearl were paid off. In round terms, the evidence indicates that some £114,000 or so was paid to Pearl to obtain the release of the relevant plots from its charge. The balance of each sum of £190,000 does not seem to have been paid to Park.
Each of the transfers was registered at the Land Registry, with the result that Mr Kinnear became the registered proprietor of plots 2 and 4 and Mr Mitty became the registered proprietor of plots 3 and 6. The position today, as I understand it, is that Mr Mitty remains the registered proprietor of plots 3 and 6. For his part, Mr Kinnear remains the registered proprietor of plot 2. Plot 4 was sold on a number of years ago by a chargee. The evidence indicates that some £200,000 was realised for the plot.
I should say that there is evidence indicating that, when a winding up order was made in respect of Park, and when subsequently plots 2, 3, 4 and 6 were transferred to Mr Kinnear and Mr Mitty, the development of those plots was by no means yet complete. It seems that money will have needed to be spent on undertaking or completing the construction of houses on the plots. In that respect, I was referred by Mr Learmonth to a 2006 quote relating, it would appear, to construction works, and in the course of his submissions Mr Mitty said that plot 3 remained to be completed and that plots 2 and 6 were finished in about 2006 or 2007 and then let out.
Against that background, the liquidator's case is that he is entitled to have the properties of which Mr Kinnear and Mr Mitty remain the registered proprietors transferred back into the name of the company. The liquidator also claims to be entitled to the £200,000 received for plot 4. He further asks for orders providing for Park to be indemnified against mortgages which have been taken out on plots 2, 3 and 6. He says too that his entitlement to these remedies is plain, so that it is appropriate to make an order now for summary judgment.
Mr Kinnear and Mr Mitty take a preliminary point. They question, as I understand it, whether Park was in liquidation in November 2004 when the transfers were executed. Mr Mitty explained to me that he and Mr Kinnear do not deny that Park is in liquidation now, but they suggest that the company went into liquidation not in September 2004 pursuant to a winding up order, but by way of voluntary liquidation in 2005.
On the evidence available to me, that is not a sustainable submission. I have amongst the evidence the winding up order that was made in respect of Park in September 2004, and there is nothing in the documents before me to indicate that that order was ever the subject of an appeal or a stay or rescinded. To the contrary, I have not only evidence from Mr Taylor that he is a liquidator in consequence of that order, but a report to creditors and contributories from the Official Receiver which appears to confirm that a winding up order was made on 28 September 2004 and also a document relating to the handover of the estate from the Official Receiver to Mr Taylor in March 2005. It is fair to say, as Mr Mitty did, that there is some reason to believe that the petition creditor is no longer owed money, but, even if that is right, it does not mean that the company has not been in liquidation since the order was made on 28 September 2004. I do not think therefore that this point can provide any arguable defence to Mr Taylor's claim.
The other, linked point that Mr Mitty stressed was that he and Mr Kinnear want more time to investigate matters. So far as that is concerned, these proceedings have been on foot for quite some time. They were instituted as long ago as 2010. The Amended Particulars of Claim date from...
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Swift 1st Ltd v The Chief Land Registrar
...Fitzwilliam v. Richall Holdings Services Ltd [2013] EWHC 86 (Ch); [2013] 1 P&CR 19 (itself followed by the same judge in Park Associated Developments Ltd v. Kinnear [2013] EWHC 3617 (Ch)). I consider these later in this judgment after I have considered the legislative history of the indemni......