Everitt v Budhram & Anor [2009] EWHC 1219 (Ch) (20 May 2009)

Everitt v Budhram & Anor [2009] EWHC 1219 (Ch) (20 May 2009)

The County Court judge erred in law and procedure by considering irrelevant factors (the appropriateness of bankruptcy proceedings, the needs of the bankrupt), by treating the trustee as a judgment creditor, by failing to consider the interests of creditors, by considering undisclosed material, and by ordering assessment of remuneration without application. The correct approach is to order sale unless exceptional circumstances exist, which in this case are limited to the medical and mental condition of the co-owner (Mr Budhram), justifying a limited suspension of the order for sale.

Citation
[2009] EWHC 1219 (Ch)
Parties
Appellant (trustee in Bankruptcy): Clive Everitt; First Respondent (bankrupt): David Budhram; Second Respondent (bankrupt): Marilyn Budhram
Jurisdiction
England and Wales
Judgment Date
20 May 2009
Procedural Posture
Bankruptcy Appeal / Appeal From County Court Decision Refusing Order for Sale
Outcome
Appeal allowed
Legal Topics
Bankruptcy Trustee Powers, Order for Sale of Property, Exceptional Circumstances Under Insolvency Act 1986 S.335 a, Assessment of Trustee Costs, Procedural Fairness
Insolvency Property Law Bankruptcy Trustee Powers Order for Sale of Property Exceptional Circumstances Under Insolvency Act 1986 S.335 a Assessment of Trustee Costs Procedural Fairness

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Parties

Clive Everitt

Appellant (trustee in Bankruptcy)

David Budhram

First Respondent (bankrupt)

Marilyn Budhram

Second Respondent (bankrupt)

Procedural Posture

Bankruptcy Appeal / Appeal From County Court Decision Refusing Order for Sale

Legal Issues

  1. 1 Whether the County Court erred in refusing an order for sale of the bankrupt's property under s.335A Insolvency Act 1986
  2. 2 Whether the judge wrongly considered the appropriateness of bankruptcy proceedings as a debt recovery method
  3. 3 Whether the judge erred in treating the trustee as a judgment creditor with a charging order

Ratio Decidendi

The County Court judge erred in law and procedure by considering irrelevant factors (the appropriateness of bankruptcy proceedings, the needs of the bankrupt), by treating the trustee as a judgment creditor, by failing to consider the interests of creditors, by considering undisclosed material, and by ordering assessment of remuneration without application. The correct approach is to order sale unless exceptional circumstances exist, which in this case are limited to the medical and mental condition of the co-owner (Mr Budhram), justifying a limited suspension of the order for sale.

Court Disposition

Appeal allowed

Orders

  • Order for sale of Mrs Budhram's interest in the property granted, but suspended for one year or three months after an order for possession is obtained against Mr Budhram, whichever is earlier.
  • Summary assessment of trustee's costs in the amount of £14,280.18.