The Minister for Communications, Energy & Natural Resources & anor v Wymes (Approved) [2021] IESC 40 (01 July 2021)

The Minister for Communications, Energy & Natural Resources & anor v Wymes (Approved) [2021] IESC 40 (01 July 2021)

A debtor commits an act of bankruptcy under s.7(1)(g) of the Bankruptcy Act 1988 by failing to pay or secure the debt within 14 days of service of a bankruptcy summons, even if the debtor has challenged the summons under s.8(5) within that period. The statutory scheme does not provide for a stay or suspension of the running of time or the occurrence of the act of bankruptcy pending determination of such a challenge. The act of bankruptcy is deemed to have occurred, and the creditor may present a petition within three months. However, adjudication should not proceed until the challenge is resolved.

Citation
[2021] IESC 40
Parties
Petitioners/respondents: The Minister for Communications, Energy & Natural Resources and Michael O’Connell; Respondent/appellant: Michael Wymes
Jurisdiction
Ireland
Judgment Date
01 July 2021
Procedural Posture
Bankruptcy Appeal / Supreme Court Judgment on Appeal From Court of Appeal, Post Adjudication Challenge Under S.16 of the Bankruptcy Act 1988
Outcome
Appeal dismissed
Legal Topics
Bankruptcy Summons, Acts of Bankruptcy, Statutory Time Limits, Challenge to Bankruptcy Process, Effect of Pending Challenge on Act of Bankruptcy
Insolvency Bankruptcy Statutory Interpretation Bankruptcy Summons Acts of Bankruptcy Statutory Time Limits Challenge to Bankruptcy Process Effect of Pending Challenge on Act of Bankruptcy

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Parties

The Minister for Communications, Energy & Natural Resources and Michael O’Connell

Petitioners/respondents

Michael Wymes

Respondent/appellant

Procedural Posture

Bankruptcy Appeal / Supreme Court Judgment on Appeal From Court of Appeal, Post Adjudication Challenge Under S.16 of the Bankruptcy Act 1988

Legal Issues

  1. 1 Whether a debtor can commit an act of bankruptcy under s.7(1)(g) of the Bankruptcy Act 1988 by failing to satisfy a bankruptcy summons within 14 days if the debtor has challenged the summons under s.8(5) within that period
  2. 2 Whether the reckoning of time for an act of bankruptcy is stayed or suspended pending determination of an application to dismiss the bankruptcy summons

Ratio Decidendi

A debtor commits an act of bankruptcy under s.7(1)(g) of the Bankruptcy Act 1988 by failing to pay or secure the debt within 14 days of service of a bankruptcy summons, even if the debtor has challenged the summons under s.8(5) within that period. The statutory scheme does not provide for a stay or suspension of the running of time or the occurrence of the act of bankruptcy pending determination of such a challenge. The act of bankruptcy is deemed to have occurred, and the creditor may present a petition within three months. However, adjudication should not proceed until the challenge is resolved.

Court Disposition

Appeal dismissed

Orders

  • The Supreme Court affirms the decisions of the High Court and Court of Appeal; the act of bankruptcy was validly committed and the bankruptcy process may proceed.