Key Facts
- •Renewed application for permission to appeal orders of ICC Judge Mullen (16 September 2022 & 3 November 2022).
- •Judge Mullen refused to annul a bankruptcy order despite finding the debt was not liquidated.
- •Appellant argued the bankruptcy order was made without jurisdiction because the debt was not liquidated.
- •The debt was for misappropriated funds, described as liquidated in the petition.
- •Judge Mullen found the debt was not liquidated, relying on Hope v Premierpace [1999] BPIR 695.
Legal Principles
A creditor's petition requires a liquidated debt (Insolvency Act 1986, s.267(2)(b)).
Insolvency Act 1986, s.267(2)(b)
The court may annul a bankruptcy order if it appears the order ought not to have been made (Insolvency Act 1986, s.282(1)(a)).
Insolvency Act 1986, s.282(1)(a)
The court has discretion to annul a bankruptcy order, even if grounds exist, considering factors like creditor's conduct and debtor's prospects of paying (Owo-Samson v Barclays Bank [2003] EWCA Civ 714).
Owo-Samson v Barclays Bank [2003] EWCA Civ 714
Where an order is made without jurisdiction, the court will usually set it aside; however, this principle may be qualified by statute (Raiffeisenlandesbank Oberösterreich AG v Meyden [2016] EWHC 413 (Ch)).
Raiffeisenlandesbank Oberösterreich AG v Meyden [2016] EWHC 413 (Ch)
A claim for return of misappropriated monies is not a liquidated debt (Hope v Premierpace [1999] BPIR 695).
Hope v Premierpace [1999] BPIR 695
Outcomes
Permission to appeal dismissed.
Owo-Samson is binding authority; the court has discretion under section 282 to annul even if section 267(2)(b) requirements aren't met. The judge correctly exercised his discretion.