Surjit Singh Ardawa v Rajvinder Kaur Uppal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roth |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 456 (Ch) |
| Court | Chancery Division |
| Date | 01 March 2019 |
| Docket Number | Case No: CH-2018-000152 |
[2019] EWHC 456 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BANKRUPTCY COURT
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
THE HONOURABLE Mr Justice Roth
Case No: CH-2018-000152
Alan Tunkel (instructed as direct access counsel) for the Appellant
Oberon Kwok (instructed by Sydney Mitchell LLP) for the First Respondent
Katie Longstaff (instructed by Morgan Phelps Solicitors) for the Second Respondent
Hearing dates: 1 February and 5 February 2019
Approved Judgment
This is an appeal, brought with permission granted by Arnold J, from the decision of District Judge Thorpe of 19 April 2018 dismissing the amended application by the Appellant to set aside the order authorising substituted service on him of the bankruptcy petition issued by the 1 st Respondent, annul the bankruptcy order made against him and dismiss the bankruptcy petition. The District Judge delivered a reserved judgment setting out the reasons for her decision, of which I have a transcript incorporating corrections agreed by Counsel as the judge had resigned before a transcription of her oral judgment was received.
The appeal has been argued by Mr Tunkel for the Appellant and Mr Kwok for the 1 st Respondent, and each has raised every argument that could be made on behalf of their respective clients. The 2 nd Respondent is the Appellant's trustee in bankruptcy (“the Trustee”), appointed on 23 May 2016 by the Secretary of State. The Trustee has stated that he is neutral on the substantive issues as between the other parties, and he has therefore taken no part in the argument on the hearing of the appeal other than to make written submissions regarding recovery of his costs and expenses. In this judgment, I shall therefore refer to the 1 st Respondent simply as “the Respondent”.
THE FACTS
The Appellant and the Respondent were formerly husband and wife. They were married in 1992 and have three daughters. They separated in about 2008 and were divorced in 2011. The divorce has been described as acrimonious and there have been several previous contested court proceedings between them. The debt which is the foundation of the petition is £8,834.80, comprising three costs orders made against the Appellant in ancillary relief proceedings in the Birmingham County Court in 2009 and 2011, and a fourth order of the County Court at Huddersfield made in 2014 in related possession proceedings regarding the former matrimonial home. There have also been contested proceedings in 2014–15 in the Family Court at Wolverhampton brought by the Appellant concerning contact with the children, and some aspects of those proceedings have been relied on in evidence in the present proceedings.
The Appellant does not dispute that the bankruptcy debt is due and states that he has the means to pay it. He says that he would do so if the bankruptcy were annulled so that he can access his assets. There is no suggestion that he has failed to pay any other creditors. Sadly, the conduct of the present proceedings on both sides bears all the hallmarks of the acrimony which seems to have characterised the divorce. The costs of these proceedings no doubt now greatly exceed the amount of the underlying debt.
In May 2013 the Appellant re-married. His second wife is Ms Harbinder Takhar and they have a young son. That marriage proved unsuccessful and they are now estranged. Quite when and to what degree they became estranged became an issue in these proceedings. What is clear is that since about September 2014 Ms Takhar was living with their son in a house at 26 Saltwood Avenue, Milton Keynes. The tenancy of that property was in Ms Takhar's sole name.
On 21 September 2015, the Respondent issued a statutory demand in the sum of £8,834.80. There was apparently no correspondence from the Respondent or her solicitors to the Applicant chasing payment of the costs in the period immediately before the issue of this demand.
Mr John Power, a process server instructed on behalf of the Respondent, attempted to serve the statutory demand on the Appellant at 26 Saltwood Avenue on 29 September 2015 but there was no reply, so he returned on 1 October 2015 when he spoke to a lady with a small child who said that the Appellant had gone out. Mr Power says that when he told her that he wished to speak to the Appellant on a legal matter she banged the door closed. On 3 October 2015 Mr Power sent a letter by first class post to the Appellant as follows:
“I have been directed to serve you with a Statutory Demand issued under the Insolvency Act 1986. I have already attended your address without meeting you. I have to inform you that I will attend 26 Saltwood Avenue, Milton Keynes, MK4 4HP at 18:15 hours on Thursday 8 October 2015 for the purpose of serving you personally with the Statutory Demand.
Should the above appointment prove inconvenient, I will endeavour to attend any other reasonable appointment you may suggest. I can be contacted on either my office telephone number 01582 656 392 or my mobile number 07831 200066.
It is my duty to inform you that should you fail to attend the above appointment, or any other made in lieu thereof, I propose to serve you by putting a copy of the Statutory Demand through your letter box (or other suitable place if this is not possible) or via advertisement in the local press.
In the event of service by putting a copy through your letter box (or other suitable place) I will do this on the day of appointment and that will be the day of service if you do not attend the appointment. It is my duty to inform you that in the event of a Bankruptcy Petition being presented the Court will be asked to treat such service as service of Statutory Demand on the Debtor.”
Mr Power's uncontested evidence was that he duly attended at the property at 6.15 pm on 8 October 2015 but got no reply from knocking on the door despite seeing lights on inside the house. He therefore posted the statutory demand through the letter box in an envelope addressed to the Appellant marked “private and confidential.”
There was no response to the statutory demand and on 20 January 2016 the Respondent issued a bankruptcy petition based on the demand. The petition gave the address of the Appellant as 26 Saltwood Avenue, Milton Keynes. The petition form requires (in accordance with rule 6.7(1)(e) of the Insolvency Rules 1986) that the petitioner “insert any other address or addresses at which the debtor has resided at or after the time the petition debt was incurred” but no other address was inserted. Mr Power attempted to serve the petition personally at 26 Saltwood Avenue on 25 January 2016 but there was no reply, and returned on 26 January when he spoke to a lady who told him that she was the child minder and that the Appellant “has gone out”. He left his contact details and, according to Mr Power's uncontested witness statement, she said that she would ask the Appellant to ring him “on his return later that day.” Mr Power further states:
“I have undertaken investigative enquiries but I have been unable to obtain any alternative employment, business or residential address for Surjit Singh Ardawa or am I aware of any mobile or land line telephone numbers or email address on which I am able to make any contact with the Debtor or if he is represented by a solicitor.”
It is not suggested for the Respondent that Mr Power is not telling the truth when he says that he made such inquiries. But it is accepted that the Respondent, and thus by implication her solicitors, were aware of both a mobile number and an email for the Appellant. Indeed, the Respondent was in regular contact with the Appellant over this period regarding access arrangements for the two younger daughters and the Appellant has exhibited text messages passing between him and the Respondent on 22 and 24 January 2016. Evidently, Mr Power was not given this information. It is also appropriate to note that while the daughters were seeing their father on a fortnightly basis, with text messages passing between the Appellant and Respondent concerning the arrangements, none of the messages over this period from either Appellant or Respondent makes any reference to the statutory demand or the petition.
Mr Power says that he sent a letter by first class post to the Appellant at 26 Saltwood Avenue which was in similar form to the letter quoted above save that it referred to the petition instead of the statutory demand and stated that a further call would be made at 10.30 am on 1 February 2016 for the purpose of personal service, unless the Appellant called Mr Power to arrange an alternative appointment. That letter concluded:
“It is my duty to inform you that should you fail to attend the above appointment, or any other made in lieu thereof, the Creditor will apply to the Court for an Order of substituted service either by advertisement in the press or in such other manner as the Court may deem fit.”
On 1 February 2016, Mr Power duly attended when he spoke to the same lady as before who told him that she had been instructed by the Appellant “not to accept anything” from him. Mr Power then placed a copy of the petition in an envelope addressed to the Appellant through the letter-box.
On 17 February 2016, District Judge Hickman in the County Court at Milton Keynes made an order on reading this witness statement of Mr Power that the bankruptcy petition posted through the letter box at 26 Saltwood Avenue on 1 February 2016 is deemed service on the Appellant “and no further steps as to service is [sic] required.” It is that order which the Appellant seeks to set aside as part of his application.
On 6 April 2016, Deputy District Judge Tansey made the...
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