Brake & Ors v Lowes & Ors (Ruling on strike out of Liquidation Application)

Brake & Ors v Lowes & Ors (Ruling on strike out of Liquidation Application)

The Brakes, as trustees, have no standing to pursue the Liquidation Application as they are not creditors or contributories; the joined creditors are acting as nominees for the Brakes and thus also lack standing. The Cottage Application is struck out for want of prosecution as the applicant did not appear or pursue it. The disclosure application fails for lack of compliance with procedural requirements. Costs are awarded on an issue-based basis. Permission to appeal is granted on certain grounds due to real prospect of success.

Parties
Applicant/respondent (trustee of the Brake Family Settlement): Nihal Mohammed Kamal Brake; Applicant/respondent (trustee of the Brake Family Settlement): Andrew Young Brake; Respondent/applicant (joint Liquidator of Stay in Style Partnership): Simon Lowes; Respondent/applicant (joint Liquidator of Stay in Style Partnership): Richard Toone; Respondent/applicant (former Trustee in Bankruptcy): Duncan Kenric Swift; Respondent/applicant: The Chedington Court Estate Limited; Respondents/applicants: Certain Liquidation Creditors (represented by Anna Lintner)
Jurisdiction
England and Wales
Judgment Date
03 March 2020
Procedural Posture
Insolvency (liquidation and Bankruptcy) Applications / Rulings on Strike Out, Summary Judgment, Disclosure, Costs, and Permission to Appeal
Outcome
Liquidation Application struck out for want of standing; Cottage Application struck out for want of prosecution; Disclosure Application dismissed; Issue-based costs orders; Permission to appeal granted on specified grounds.
Legal Topics
Standing in Insolvency Proceedings, Strike Out Applications, Disclosure Obligations, Costs Orders, Permission to Appeal
Insolvency Law Civil Procedure Standing in Insolvency Proceedings Strike Out Applications Disclosure Obligations Costs Orders Permission to Appeal

Case Brief

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Parties

Nihal Mohammed Kamal Brake

Applicant/respondent (trustee of the Brake Family Settlement)

Andrew Young Brake

Applicant/respondent (trustee of the Brake Family Settlement)

Simon Lowes

Respondent/applicant (joint Liquidator of Stay in Style Partnership)

Richard Toone

Respondent/applicant (joint Liquidator of Stay in Style Partnership)

Duncan Kenric Swift

Respondent/applicant (former Trustee in Bankruptcy)

The Chedington Court Estate Limited

Respondent/applicant

Certain Liquidation Creditors (represented by Anna Lintner)

Respondents/applicants

Procedural Posture

Insolvency (liquidation and Bankruptcy) Applications / Rulings on Strike Out, Summary Judgment, Disclosure, Costs, and Permission to Appeal

Legal Issues

  1. 1 Whether the Brakes, as trustees, have standing to pursue the Liquidation Application
  2. 2 Whether the joined liquidation creditors have standing or are nominees for the Brakes
  3. 3 Whether the Cottage Application should be struck out for want of prosecution

Ratio Decidendi

The Brakes, as trustees, have no standing to pursue the Liquidation Application as they are not creditors or contributories; the joined creditors are acting as nominees for the Brakes and thus also lack standing. The Cottage Application is struck out for want of prosecution as the applicant did not appear or pursue it. The disclosure application fails for lack of compliance with procedural requirements. Costs are awarded on an issue-based basis. Permission to appeal is granted on certain grounds due to real prospect of success.

Court Disposition

Liquidation Application struck out for want of standing; Cottage Application struck out for want of prosecution; Disclosure Application dismissed; Issue-based costs orders; Permission to appeal granted on specified grounds.

Orders

  • Liquidation Application struck out as to the Brakes and joined creditors for lack of standing.
  • Cottage Application struck out for want of prosecution.