The Judge ordered that if he wish to file further evidence in support, the appellant must make an application by February 2017 for permission. The appellant did not issue such an application, but did file a witness statement in March 2017. At the hearing, the Judge refused permission for the appellant to rely on that statement and refused permission for him to file further evidence, making the order for possession and sale.
On appeal, the appellant failed to distinguish between the evidence that was before the judge and that which was not. Taking into account the permitted evidence, there was nothing to suggest the appellant had contributed to the purchase price of the property and insufficient grounds to give rise to a resulting trust as a result of some mortgage payments the appellant had made.
Further, the appellant had failed to adhere to the judge’s direction in respect of filing further evidence out of time and had made no attempt to remedy the default. A further application to admit new evidence was also refused.
As well as reaffirming procedural principles relating to filing out of time evidence and failure to follow directions, contrary to popular belief, this case demonstrates that making a number of mortgage payments may not be sufficient, in itself, to give rise to a beneficial interest.
(1) EDWARD THOMAS (2) ANN NILSSON (JOINT TRUSTEES OF THE BANKRUPTCY ESTATE OF RANI MALATHI SAMARAKKODI BULATHWELA) v (1) RANI MALATHI SAMARAKKODI BULATHWELA (2) KUMAR ANTON ROHITHA BULATHWELA [2019] EWHC 3511 (Ch)
English administration procedure available to Gibraltar registered and comiciled company
A Gibraltar registered company applied to the English court for an administration order. Paragraph 111(1A) of Schedule B1 to the Insolvency Act 1986 has the effect that an English administration order is only available if the company:
- is registered in England and Wales; or
- is incorporated in an EEA state other than the UK; or
- (i) is not incorporated in an EEA state; but (ii) has its centre of main interests in an EU Member State other than Denmark. (Centre of main interests or comicile is a term of art defined in the EU Insolvency Regulation which effectively permits insolvency proceedings to be opened in the EU Member State in which a company is comiciled with such insolvency proceedings having automatic effect throughout the EU.)
The court held that the company was not registered in an EEA state because, although the provisions of the Oporto agreement governing the EEA arrangements applied to it, it was not a “contracting party” as defined therein. Accordingly, (b) above did not apply to the company. However the company did satisfied the criterion in (c)(i) and the question then arose as to whether the criterion in (c)(ii) was satisfied. The court held that the company’s comicile was in England, and not Gibraltar, and so (c)(ii) was satisfied and accordingly an administration order could be made against it in England using the jurisdiction contained in (c) above.
More novelly, the court conducted an alternative analysis, considering whether the jurisdiction would still have been available had the company been comiciled in Gibraltar, rather than England andheld that the company had its comicile in an EU Member State as Gibraltar is a territory of the UK.
In re Nektan (Gibraltar) Limited [2020] EWHC 65 (Ch)
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