Re Official Receiver, ex parte, Reed, Bowen & Company
| Jurisdiction | England & Wales |
| Date | 1887 |
| Court | Court of Appeal |
Bankruptcy - Appeal - Locus Standi - “Person aggrieved” - Official Receiver - Refusal of Application for Adjudication of Bankruptcy on non-approval of Scheme of Arrangement -
When an application made by the official receiver under s. 20 of the Bankruptcy Act, 1883, and rule 191 of the Bankruptcy Rules, 1886, for an immediate adjudication of bankruptcy against a debtor, on the non-approval of a scheme of arrangement, has been refused or adjourned, the official receiver is a “person aggrieved” by the order, and as such is entitled to appeal against it.
So held, by Lord Esher, M.R., and Lopes, L.J. (Fry, L.J., dissenting).
APPEAL by the official receiver against an order made by the registrar, adjourning, till July 1, 1887, the hearing of an application for an adjudication of bankruptcy against the debtors.
A receiving order having been made against the debtors on April 17, 1885, the creditors resolved to accept a scheme of arrangement proposed by the debtors, but the registrar refused to approve of the scheme, and his decision was affirmed by the Court of Appeal.F1
A second scheme of arrangement was afterwards proposed by the debtors and was accepted by the creditors, but the registrar refused to approve of it, and an appeal from his decision was dismissed.
The Court of Appeal on that occasion also refused an application for leave to summon a fresh first meeting of the creditors with a view to the proposal of an amended scheme.
On April 29 the official receiver applied to the Court, under s. 20 of the Bankruptcy Act, 1883, and rule 191 of the Bankruptcy Rules, 1886, for an immediate adjudication of bankruptcy against the debtors, on the ground that a composition or scheme had not been approved in pursuance of the Act within fourteen days after the conclusion of the examination of the debtors, or such further time as the Court had allowed. The application was opposed by the debtors, and by a company, called the Railway Construction Company, which had been formed for the purpose of taking over the contracts of the debtors, and at their request the registrar adjourned the hearing of the application.
The official receiver appealed.
Muir Mackenzie, (Sir R. E. Webster, A.G., and Sir E. Clarke, S.G., with him), for the appellant.
Finlay, Q.C., and Sidney Woolf, for the Railway Construction Company, and for some creditors. The official receiver is not a “person aggrieved”F2 by the registrar's order, and, therefore, he has no locus standi to appeal against it. The duties of the official receiver are defined by ss. 68, 69 and 70 of the Act. When he has brought the matter before the Court he has discharged his duty, and he has no further interest in it: Ex parte Cooper.F3
Muir Mackenzie, for the appellant. Rule 191 authorizes the official receiver to make this application to the Court under s. 20, and it follows that he is entitled to appeal against the order made by the judge of first instance. He is an officer of the Court, but he is also an officer of the Board of Trade, and he acts under the direction of the Board. The term “person aggrieved” is not limited to a person who has a pecuniary grievance. The original application in the present case was made by the direction of the Board of Trade; the official receiver was a party to the litigation, and he is “aggrieved” by the refusal of his application: Ex parte Leslie.F4
Herbert Reed, for the debtor.
Wilkinson, for a creditor.
Finlay, Q.C., in reply. The duty of the official receiver is only to bring the facts before the Court, and then the Court acts or not, mero motu, as it thinks fit. He has no further concern in the matter, and is not entitled to appeal. In Ex parte Sidebotham,F5 James, L.J., intimated an opinion that the comptroller in bankruptcy could not appeal against the refusal of the Court to act on his report. Under the
Muir Mackenzie, in reply as to the new cases cited. The position of the comptroller under the Act of 1869 was very different from that of the official receiver under the present Act. The duties which were imposed on the comptroller by r. 251 of the
LORD ESHER, M.R. The question is whether the official re ceiver is entitled to appeal against such a refusal of such an order as was asked from the registrar, an order which, if the facts alleged were made out, the registrar was bound to make judicially, unless he was entitled for good reason to adjourn the hearing.
By s. 20 it is enacted that “if a composition or scheme is not accepted or approved within fourteen days after the conclusion of the...
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...re Armstrong (1886-870) 17 Q.B.D. 521…....................................…………..1459 Ex parte Official Receiver in re Reed, Bowen & Co., 19 Q.B.D. 174.......................…………..1685 Ex Parte Sidebotham (1980) Ch. D. 465…………….......................................................................