Pec Barr (holdings) Limited V. Munro Holdings Uk Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff Principal E.F. Bowen |
| Court | Sheriff Court |
| Docket Number | (L99/09) |
| Date | 12 February 2010 |
| Published date | 16 February 2010 |
(L99/09)
JUDGMENT OF
SHERIFF PRINCIPAL EDWARD F BOWEN QCin the appeal
in the cause
PEC BARR (HOLDINGS) LTD
Petitioners
against
MUNRO HOLDINGS UK LTD
Respondents
Act: Scott, Campbell Smith WS
Alt: Miss W Thomson, Brechin Tindall Oates
EDINBURGH, 12 February 2010
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor dated 20 August 2009; reserves all questions of expenses.
(signed) E Bowen
NOTE:
1. This appeal arises following the granting of a winding up order for the appellant company, on the ground that it is unable to pay its debts. It raises a short issue concerning the approach of the court, in an application under section 122(1) of the Insolvency Act 1986, to the existence of a disputed debt.
2. The essential dispute between the parties centred around a contention by the appellants that their debt to the petitioners had been extinguished by a payment of £5,000 said to have been made in cash by a former employee to a director of the petitioners in about August 2008. The sheriff had before him, amongst other material, affidavits provided by the appellants' employee Mr Creswell, and the petitioners' director Mr Barr. The substance of Mr Barr's affidavit was that he had never received a payment in cash from Mr Creswell. Mr Creswell's affidavit, on the other hand suggested that such a payment had been made. After reviewing what was said in the affidavits and making reference to certain other matters involving rental payments by the appellants to the petitioners the sheriff concluded that there was "no dispute as to the existence of the debt on substantial grounds".
3. There is no argument that the sheriff approached the issue before him other than on a proper basis in law. Both parties agreed that this is set out in the judgment of Lord Hodge in the case of Macplant Services Limited to wind up Contract Lifting Services (Scotland) Limited [2008] CSOH 158 (12 November 2008). In paragraph 8 his Lordship sets out that a petitioner will not be a creditor for the purposes of section 124 of the Act, and thus will not have title and interest to seek a winding up under section 122 if the respondent company shows that the debt is disputed in good faith and on substantial grounds. In paragraph 9 his Lordship observed: "Where, as here, each side produces many affidavits and voluminous documentary evidence, it appears to me that the court must look at the material which the parties place before it to see if it can...
To continue reading
Request your trial