C & W Berry Ltd. v Armstrong-Moakes

C & W Berry Ltd. v Armstrong-Moakes

Berry did not surrender its security by conduct, but its failure to value the security or assert its rights over many years justified the exercise of judicial discretion under section 3(5) of the Charging Orders Act 1979 to discharge the charging order.

Parties
Creditor/respondent: C & W Berry Limited; Judgment Debtor: Neil Armstrong-Moakes (Deceased); Applicant: Stephanie Armstrong-Moakes
Jurisdiction
England and Wales
Judgment Date
13 September 2007
Procedural Posture
Civil Appeal / Appeal From District Judge's Order Discharging Charging Order Absolute
Outcome
Appeal dismissed; District Judge's order discharging the Charging Order Absolute upheld.
Legal Topics
Charging Orders, Bankruptcy, Judicial Discretion, Surrender and Waiver of Security
Property Law Insolvency Law Civil Procedure Charging Orders Bankruptcy Judicial Discretion Surrender and Waiver of Security

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Parties

C & W Berry Limited

Creditor/respondent

Neil Armstrong-Moakes (Deceased)

Judgment Debtor

Stephanie Armstrong-Moakes

Applicant

Procedural Posture

Civil Appeal / Appeal From District Judge's Order Discharging Charging Order Absolute

Legal Issues

  1. 1 Whether the Charging Order Absolute should have been made in light of impending bankruptcy
  2. 2 Whether Berry surrendered or waived its security by conduct
  3. 3 Whether the court should exercise discretion under section 3(5) of the Charging Orders Act 1979 to discharge the charging order

Ratio Decidendi

Berry did not surrender its security by conduct, but its failure to value the security or assert its rights over many years justified the exercise of judicial discretion under section 3(5) of the Charging Orders Act 1979 to discharge the charging order.

Court Disposition

Appeal dismissed; District Judge's order discharging the Charging Order Absolute upheld.

Orders

  • Charging Order Absolute discharged.
  • No interference with District Judge's exercise of discretion.