Sparkasse Hilden Ratingen Velbert v Benk & Anor

Sparkasse Hilden Ratingen Velbert v Benk & Anor

Mr Benk’s COMI was in Germany at the time of the bankruptcy petition and order. His presence in England was temporary and contrived, with no genuine or permanent economic activity. The photography business was window-dressing, and his ties, habitual residence, and professional domicile remained in Germany. The English court had no jurisdiction to make the bankruptcy order.

Parties
Applicant: Sparkasse Hilden Ratingen Velbert; First Respondent: Horst Konrad Benk; Second Respondent: The Official Receiver
Jurisdiction
England and Wales
Judgment Date
29 August 2012
Procedural Posture
Bankruptcy Annulment Application / Judgment
Outcome
Bankruptcy order annulled
Legal Topics
Centre of Main Interest (comi), Jurisdiction, Forum Shopping, Annulment of Bankruptcy Order
Insolvency Bankruptcy Centre of Main Interest (comi) Jurisdiction Forum Shopping Annulment of Bankruptcy Order

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Parties

Sparkasse Hilden Ratingen Velbert

Applicant

Horst Konrad Benk

First Respondent

The Official Receiver

Second Respondent

Procedural Posture

Bankruptcy Annulment Application / Judgment

Legal Issues

  1. 1 Whether the court had jurisdiction to make the bankruptcy order based on the debtor's COMI
  2. 2 Whether Mr Benk's COMI was in England or Germany at the relevant time

Ratio Decidendi

Mr Benk’s COMI was in Germany at the time of the bankruptcy petition and order. His presence in England was temporary and contrived, with no genuine or permanent economic activity. The photography business was window-dressing, and his ties, habitual residence, and professional domicile remained in Germany. The English court had no jurisdiction to make the bankruptcy order.

Court Disposition

Bankruptcy order annulled

Orders

  • The bankruptcy order made on 17 June 2010 is annulled.