Re Colgate (A Bankrupt)ex parte Trustee of the Property of the Bankrupt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE LLOYD,SIR DAVID CAIRNS |
| Judgment Date | 04 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1104-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 1985 |
| Docket Number | 85/0657 |
[1985] EWCA Civ J1104-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN BANKRUPTCY
Royal Courts of Justice
Lord Justice May
Lord Justice Lloyd
Sir David Cairns
85/0657
MR A.G.STEINFELD, instructed by Messrs. Booth & Blackwell, appeared for the Appellant (Trustee).
NO APPEARANCE for the other side.
This is an appeal from an order of Mr Registrar Dewhurst made on 12th November 1984 by which he refused the application of a trustee in bankruptcy for the fixing by the court of that trustee's remuneration. The very brief facts of this case are these. The bankrupt was adjudicated on 22nd October 1980, and the appointment of the appellant as trustee was certified by the Department of Trade on 13th November 1980. The trustee went about his duties getting in the assets and settling the liabilities until, first by letter dated 18th November 1982 to all creditors, he informed them that he was in a position to close the case and continued, in the first sentence of that letter, "but before doing so and making payment of a dividend to the creditors it is necessary for my remuneration to be fixed by the creditors". Pursuant to statutory provisions to which I shall have to refer in detail in a moment, he gave notice, under cover of the same letter, of a meeting of creditors to be held on 30th November 1982. Accompanying that notice was an estimated receipts and payments account in the bankruptcy together with a brief note from the trustee indicating that he was seeking total remuneration of £2,342 plus the appropriate amount of value added tax. Before going further, I should just interpose that, by an error, that figure of £2,342 now appears in the notice of motion which was before the learned Registrar as the sum of £2,328. There is nothing further in the difference between those two figures.
What happened was that no creditors at all attended at the nominated time and place for that first meeting, and on five subsequent occasions through 1983 and 1984 precisely the same state of affairs occurred. The trustee gave notice of appropriate meetings of the creditors, and each time no creditors attended. The result of course was that there has been no meeting of creditors to fix his remuneration. Hence the ultimate application to the court, which was heard and decided by the learned Registrar as I have already said.
The relevant statutory provisions are to be found in the Bankruptcy Act 1914. Section 62 of that Act provides for the declaration and distribution of dividends. It is unnecessary to read it in full. It may be noted in passing that it provides for the retention by the trustee of such sums as may be necessary for the costs of the administration. The final dividend is provided for by Section 67. Again, it is unnecessary to read the section in detail. It provides again for the retention of appropriate sums in order to deal fully with the bankruptcy proceedings.
Moving on to section 79, subsection (3) provides: "The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy." It was pursuant to that provision of the Act that this application was made to and came before the learned Registrar.
In passing, I note that it was in relation to meetings of creditors, which is the subject-matter of earlier subsections in section 79, that the one authority to which we were referred, namely Re J. Burn (1932) 1 Ch. 247 was concerned, and I shall return to that authority in due course.
Moving on again through the statutory provisions, section 82(1) provides: "where the creditors appoint any person to be trustee of a debtor's estate, his remuneration (if any) shall be fixed by an ordinary resolution of the creditors, or, if the creditors so resolve, by the committee of inspection, and shall be in the nature of a commission or percentage, of which one part shall be payable on the amount realised by the trustee, after deducting any sums payable to secured creditors out of the proceeds of their securities, and the other part on the amount distributed in dividend."
Pausing again, when one looks at the estimated receipts and payments account on page 19 of the bundle before us, one sees immediately that the suggested remuneration sought in that account by the trustee is calculated and stated in accordance with the requirements of section 82(1) which I have just read both in so far as commission or percentages are concerned, and also as realisations and dividends are concerned.
So much then for the principal statutory provision under which the remuneration of this trustee would have been fixed by the creditors. From what I have already said it will be noted that that is precisely what the trustee has tried to achieve on six separate occasions, which have proved wholly abortive through the non-attendance of creditors at any of the meetings he called.
I turn then to section 105(1) of the Act, which again needs reading in full and provides as follows: "Subject to the...
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Cooper v Official Receiver
...unusual circumstances justice required it (para. 25). (iii) In Re Colgate (a bankrupt) ex parte Trustee of the Property of the Bankrupt (1986) Ch 439 a trustee in bankruptcy had sought a meeting of creditors to fix his remuneration under section 82 of the 1914 Act but had failed so he appli......
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Engel v Peri
...remuneration where, by reason of unusual circumstances, justice requires this. 26 The first of these decisions is Re Colgate (a bankrupt) [1986] Ch 439. In that case a trustee in bankruptcy had tried on five occasions to hold a meeting of creditors to pass a resolution fixing his remunerat......
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