Steven James Hunt v (1) Roderick Withinshaw (Former trustee in bankruptcy of Steven James Hunt) (First Respondent) (2) Conwy County Borough Council (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 27 October 2015 |
| Neutral Citation | [2015] EWHC 3072 (Ch) |
| Docket Number | Appeal Ref: CH/2014/0074 |
| Date | 27 October 2015 |
| Court | Chancery Division |
[2015] EWHC 3072 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Appeal Ref: CH/2014/0074
Case No: County Court Ref: OCJ 70015/ 15 of 2008
Mr Steven Hunt appeared in person
Mr Graham Sellers (instructed by DWF LLP) for Mr Withinshaw
Mr Louis Doyle (instructed by Head of Legal and Democratic Services, Conwy County Borough Council) for Conwy County Borough Council
Hearing dates: 13, 14 and 15 October 2015
Introduction
This case concerns the Victoria Pier, Colwyn Bay ("the pier"). The freehold of the pier was owned by Mr Hunt until July 2008 when he was made bankrupt and the freehold vested in his trustee in bankruptcy, Mr Withinshaw ("the trustee").
The issues which now need to be addressed include:
(1) whether the trustee effectively disclaimed the freehold in the pier and the consequences of an effective disclaimer, alternatively, of an ineffective attempt to disclaim; and
(2) whether the court should make a vesting order in favour of Mr Hunt and, if so, the extent of the property to be vested by such order.
The issues arise by reason of the admitted facts that:
(1) as at the date of the presentation of the bankruptcy petition and as at the date of the bankruptcy, one part of a pavilion on the pier came with the definition of "dwelling house" in section 385 of the Insolvency Act 1986 ("the 1986 Act");
(2) as at the date of presentation of the bankruptcy petition, Mr Hunt was in occupation of, or entitled to occupy, that dwelling house for the purposes of sections 320(2)(c) and 320(3)(c) of the 1986 Act; and
(3) as at the date of the bankruptcy, that dwelling house was the sole or principal residence of Mr Hunt for the purposes of section 283A of the 1986 Act.
If there had not been a dwelling house on the pier at a relevant time or times, then the disclaimer would have been undoubtedly effective, there would be no question of a vesting order in favour of Mr Hunt and section 283A would not apply.
In procedural terms, there are now before the court:
(1) an appeal by Mr Hunt against an order dated 13 January 2014, made in the Caernarfon County Court, dismissing an application by him for a declaration that the pier vested in him under section 283A of the 1986 Act;
(2) an application of 9 October 2015 by Mr Hunt for various heads of relief including an order striking out Conwy County Borough Council ("Conwy") as a respondent to the above appeal; and
(3) two issues directed to be tried by an order of 8 May 2013, such issues being the remaining issues arising in an application by Mr Hunt, pursuant to section 320 of the 1986 Act, for a vesting order in relation to the pier.
In this judgment, the Insolvency Act 1986 will be referred to as "the 1986 Act" (as already indicated) and the Insolvency Rules 1986 will be referred to as "the 1986 Rules".
Mr Hunt appeared before me in person. The issues which have arisen in the course of this litigation have been technical and complex. To the usual technicalities of the law of bankruptcy there are added in this case further complications as to the operation of the rules as to disclaimer, in particular disclaimer of a freehold estate, the creation of a second freehold estate and an application for a vesting order. Over the course of this litigation, Mr Hunt has impressively developed a familiarity with at least some of these technicalities. Somewhat less admirably, he has also had a tendency to argue points which are untenable and to continue to argue points even after they have been judicially determined against him.
Mr Sellers appeared on behalf of Mr Withinshaw and Mr Doyle appeared on behalf of Conwy.
The facts
The pier was originally constructed in around 1900. It suffered serious fires in 1922 and 1933 but was then repaired or rebuilt. The pavilion on the pier dates from 1934. The pavilion was built in the Art Deco style and contains what have been described as important Art Deco murals designed by Mary Adshead and Eric Ravilious. I will refer later in this judgment to the more recent condition of the pier.
Many of the background facts concerning Mr Hunt's involvement with the pier, and many of the facts relating to his bankruptcy in 2008, are set out in detail in a judgment given by Sir William Blackburne, sitting as a High Court Judge, when dealing with an earlier round in this litigation. That judgment was given on 8 May 2013 and is reported at [2014] 1 WLR 254. In the present judgment, I will restate some of those facts, so that they are immediately available to the reader of this judgment, and I will also refer to matters which have occurred since the earlier judgment was given.
On 11 December 2003, Mr Hunt acquired the freehold of the pier and on 8 April 2004 he was registered at the Land Registry, under title no. WA727155, as proprietor in relation to that freehold title.
On 9 October 2007, Conwy made a statutory demand of Mr Hunt for unpaid rates and council tax. On 30 January 2008, Conwy presented a bankruptcy petition on the basis of Mr Hunt's failure to comply with the statutory demand. On 17 July 2008, a bankruptcy order was made in relation to Mr Hunt. Mr Withinshaw ("the trustee") was appointed trustee in bankruptcy and all of the property comprised in the bankrupt's estate, including the freehold title to the pier, vested in the trustee.
Section 283A of the 1986 Act applies where property comprised in the bankrupt's estate consists of an interest in a dwelling house which, at the date of the bankruptcy, was the sole or principal residence of the bankrupt. It was accepted in this case that the unit of accommodation on the pier was a dwelling house which was the sole or principal residence of Mr Hunt on 17 July 2008 so that the interest in the dwelling house was governed by section 283A. The three year period referred to in section 283A expired on or about 16 July 2011. On 8 July 2011 (or at any rate at the latest by 12 July 2011), the trustee applied for an order for possession of the pier. This application was made within the three year period referred to in section 283A and the application came within section 283A(3)(c), with the result that the interest in the dwelling house did not re-vest in Mr Hunt on 16 July 2011.
On 18 August 2011, the trustee signed a notice of disclaimer of the freehold interest in the pier pursuant to section 315 of the 1986 Act. The notice was in the prescribed form (Form 6.61). On 19 August 2011, the trustee filed a copy of the notice of disclaimer at the Caernarfon County Court.
On 18 August 2011, the solicitor acting for the trustee stated in an email to Mr Hunt that the trustee had decided to disclaim the freehold of the pier, that the notice of disclaimer would be filed at the court that day (it was in fact filed the following day) and that upon receipt by the trustee of a sealed copy of the notice of disclaimer, the trustee would serve a copy of the notice of disclaimer on Mr Hunt and his mother (who was understood to be claiming an interest in the pier). This email enclosed a copy of a letter which the trustee's solicitors had written to the court seeking a dismissal on 19 August 2011 of the trustee's application for possession of the pier.
On 19 August 2011, there was a hearing before District Judge Williams in the Caernarfon County Court in relation to the trustee's application for possession of the pier. The trustee did not attend but relied on the letter sent to the court on 18 August 2011. Mr Hunt did attend the hearing. The District Judge made an order which contained the recital "upon the trustee having disclaimed his interest in the pier pursuant to s. 315 of the Insolvency Act 1986". The order dismissed the application for possession of the pier.
On 22 August 2011, the trustee sent to Mr Hunt a copy of the notice of disclaimer dated 18 August 2011 which notice was endorsed with a statement that it had been filed at the court on 19 August 2011. This copy of the notice was received by Mr Hunt on 24 August 2011.
On 14 November 2011, within the period of three months permitted by rule 6.186(2) of the 1986 rules, Mr Hunt applied pursuant to section 320 of the 1986 Act for a vesting order in relation to the freehold title to the pier. The Respondent to the application was Her Majesty's Attorney General. The application was supported by Mr Hunt's affidavit sworn on 15 November 2011. The application and the affidavit were prepared on the basis that the freehold had been effectively disclaimed by the trustee. On 23 February 2012, Mr Hunt applied for summary judgment in relation to his application for a vesting order.
On 27 March 2012, acting on the basis that the disclaimer by the trustee had caused the freehold in the pier to escheat to the Crown, the Crown Estate Commissioners, exercising powers under the Crown Estate Act 1961 and section 79(1) of the Land Registration Act 2002, created a new freehold interest in the pier (and the foreshore on which it stood) in favour of the Welsh Government which transferred the same to Conwy. The transfer was subject to all third party interests in the pier including the right of any person to obtain a vesting order in respect of the pier.
On 23 April 2012, Judge Jarman QC dismissed Mr Hunt's...
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Steven James Hunt v (1) Roderick Withinshaw (former Trustee in Bankruptcy of Steven James Hunt) (First Respondent) (2) Conwy County Borough Council (Second Respondent)
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