Werner Heyder V. Lochridge Limited

L71/04

JUDGMENT OF SHERIFF NOЁL McPARTLIN

in the cause

WERNER HEYDER,

PETITIONER

against

LOCHRIDGE LIMITED,

RESPONDENT

Act: Coutts, Advocate

Alt: Frain-Bell, Advocate

EDINBURGH, 12 November 2004

The Sheriff, having considered submissions of parties on the Petition and Answers thereto, both as adjusted, together with the documents produced, finds (1) that the amount of the share capital of the said LOCHRIDGE LIMITED does not exceed ONE HUNDRED AND TWENTY THOUSAND POUNDS (£120,000.00) STERLING and (2) that the company is unable to pay its debts as they fall due; therefore the Sheriff orders that the said Lochridge Limited having its registered office at 53 George IV Bridge, Edinburgh be wound up in pursuance of the Insolvency Act 1986; NOMINATES and APPOINTS James Robin Dickson Young, Insolvency Practitioner, 1 The Square, East Linton, to be the interim Liquidator of the said company with the usual powers all in terms of said Statute and of Law; finds the expenses of the procedure to date to be expenses in the liquidation.

Sheriff of Lothian and Borders, Edinburgh

NOTE:

The petitioner in this case is Werner Heyder, who seeks to have the respondent company wound up under the provisions of the Insolvency Act 1986. The petitioner avers that he is a creditor of the respondent in the sum of £145,000.00 and pleads that the company is unable to pay its debts as they fall due as the basis for the winding-up petition.

On 26 July 2004, the first deliverance was pronounced and a provisional liquidator was appointed.

The first note for recall of the appointment of the provisional liquidator was No 4 of Process. It was considered at hearings on 2 and 16 August 2004 and refused on the latter date.

On 24 August 2004, a specification of documents for the respondent was approved. One of the objects was to obtain the originals of the copy documents, 5/1 and 5/4 of process lodged by the petitioner, which bore to be letters to the respondent from directors of the respondent admitting its debt to him. The first calling of the commission, on 9 September 2004, was adjourned due to the absence of the petitioner as haver. At the continued commission, on 20 September 2004, the petitioner attended and was accompanied by his wife and a Mark Harris. Before the questioning of the petitioner could be concluded, Mr Harris intervened and removed him from the hearing.

The hearing was continued for the petitioner to attend again, an interdict having been pronounced on 22 September 2004 to prevent the attendance of Mr Harris. The petitioner attended the continued commission, on 8 October 2004. The commission was in Edinburgh and the petitioner's principal agents were in Perth. One of their Edinburgh correspondents attended the commission with the petitioner and subsequently wrote the letter of 21 October 2004, to the Sheriff Clerk, to which I later refer. For completeness, I should mention that the commission was adjourned once more in an attempt to recover documents from another haver but the originals of the productions were not retrieved.

Meanwhile, on 28 September 2004, the respondent had lodged a second Note for recall of the appointment of the provisional liquidator (No 17 of process), to which, in due course Answers were lodged (No 19 of process).

On 28 October 2004, the case called before me for a hearing on the Petition and Answers thereto and for a hearing on the second Note for the Recall of the Provisional Liquidator and Answers thereo. The petitioner was represented by Mr Imrie, Solicitor, Perth and the respondent by counsel, Mr Frain-Bell. Mr Imrie sought an adjournment, in light of the letter from his Edinburgh correspondents, which questioned the ability of the petitioner to give instructions and suggested that it might be appropriate to appoint a curator ad litem. Mr Imrie had met with his client the previous day. He described him as "elderly, and not as sharp as a younger man" and evidently had taken instructions from him. However the letter from the Edinburgh correspondents, which Mr Imrie had not seen until late on the previous day, questioned the petitioner's ability to give instructions and Mr Imrie felt that it would be professionally difficult for him to proceed without obtaining expert advice on his client's mental health.

Mr Frain-Bell opposed any adjournment. The petitioner's agent, he submitted, should have realised earlier that the petitioner was unclear in his instructions. There would be no benefit in investigating the petitioner's medical condition. It would take time to appoint a curator ad litem and the respondent company was prejudiced by any further delay.

Although it was unfortunate that the issue of the petitioner's capacity to give instructions was being raised at such a late stage in the proceedings, I was of the view that it was essential to have this matter investigated and I continued the hearings until 8 November 2004, for that purpose.

At the continued diet, the petitioner was represented by counsel, Miss Coutts, and...