The Official Receiver v Going

The Official Receiver v Going

The appellant’s correspondence with his mother created a valid equitable charge over his 40% share of the proceeds of sale, satisfying the test in Swiss Bank Corporation v Lloyd’s Bank. The district judge erred in concluding otherwise and in making a bankruptcy restrictions order based on conduct not properly identified in the Official Receiver’s report. The appeal is allowed and the bankruptcy restrictions order is set aside.

Parties
Claimant: The Official Receiver; Defendant: John Going
Jurisdiction
England and Wales
Judgment Date
16 February 2011
Procedural Posture
Bankruptcy Appeal / Appeal Against Bankruptcy Restrictions Order
Outcome
Appeal allowed
Legal Topics
Bankruptcy Restrictions Order, Equitable Charge, Preference Payment, Procedural Fairness
Insolvency Law Bankruptcy Restrictions Order Equitable Charge Preference Payment Procedural Fairness

Case Brief

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Parties

The Official Receiver

Claimant

John Going

Defendant

Procedural Posture

Bankruptcy Appeal / Appeal Against Bankruptcy Restrictions Order

Legal Issues

  1. 1 Whether the appellant created a valid equitable charge over his share of the proceeds of sale for the benefit of his mother
  2. 2 Whether the payment to the appellant's mother was a preference or improper
  3. 3 Whether the district judge was entitled to take account of the appellant’s conduct in relation to the sale of the property

Ratio Decidendi

The appellant’s correspondence with his mother created a valid equitable charge over his 40% share of the proceeds of sale, satisfying the test in Swiss Bank Corporation v Lloyd’s Bank. The district judge erred in concluding otherwise and in making a bankruptcy restrictions order based on conduct not properly identified in the Official Receiver’s report. The appeal is allowed and the bankruptcy restrictions order is set aside.

Court Disposition

Appeal allowed

Orders

  • Permission to appeal granted
  • Bankruptcy restrictions order set aside