BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Darbyshire v Turpin & Anor [2013] EWHC 954 (Ch) (01 March 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/954.html Cite as: [2013] EWHC 954 (Ch) |
[New search] [Printable RTF version] [Help]
CHANCERY DIVISION
7 Rolls Buildings Fetter Lane London EC4A 1NL |
||
B e f o r e :
____________________
GARETH DARBYSHIRE |
Appellant |
|
- and - |
||
(1) PHILIP TURPIN (2) PETER PHILLIPS |
Respondents |
____________________
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: [email protected]
(Official Shorthand Writers to the Court)
MR MATTHEW WEAVER (instructed by NOT PROVIDED) appeared on behalf of the Defendants/Respondents
____________________
Crown Copyright ©
"In addition, the debtor has a further offset against the petitioners. Pursuant to a Deed of Assignment dated 9 March 2011, the debtor has assigned debt of £55,000 from Darbyshire Holdings Limited (DHL) which is owed to DHL by the petitioners. The assigned debt arises under a resulting trust whereby DHL discharged fees of £55,000 which were the liability of the petitioners. Since that discharge, the petitioners have become entitled to a refund of those fees as they were not payable under the contract, thus DHL is the beneficiary of a trust and is owed £55,000 under that trust by the petitioners. That trust debt has been assigned to the debtor thus it can be offset again the petition amount. Thus when these amounts are combined and credited against the correct petition amount, as proceeded on at the set aside hearing, any potential debt is extinguished. This is without taking into account further set-offs held by the debtor in relation to costs orders payable by the petitioner dating back to November 2009, which remained outstanding."
"As outlined in the previous Notice of Objection there are a number of basis on which I object to the Petition at this stage. One of those reasons is that I have a number of set-offs against the petitioners which exceed the total amount claimed. As outlined previously, the Petition can only proceed for £111,000 odd as that was the undertaking given to the judge at the Statutory Demand hearing by the petitioner's counsel. That is the figure against which set-off must be considered. I have three principal amounts which can be set-off:
(a) £59,000 received from the sale of property already paid to the petitioners;
(b) £55,000 from assigned trust claim owed by petitioners;
(c) £40,000 owed by the petitioners under a costs order made in my favour when the petitioner's presented a Statutory Demand for over a £1 million which was set aside."
"9. I am told today by Mr Becker that proceedings have been issued in respect of the sum of £55,000. Again, no such proceedings are produced to the court for me to be satisfied that this is the case, and even if they have been issued I must ask myself if they have been issued, would they extinguish the debt in its entirety or bring any amount purportedly in dispute to an amount less than the statutory minimum for the making of a bankruptcy order.
10. Against that, Mr Weaver states, and I have no evidence from the debtor of this, and he states the position very clear, no evidence, no attendance by Mr Darbyshire, a certificate of continuing debt for the entire amount and I should make the bankruptcy order."
"In relation to challenges on counterclaims and costs orders, the position of Mr Weaver was very brief. The debt that exists far exceeds any challenge. Any challenge properly made even exists, on the debtor's own case, would not exceed the Bankruptcy Petition limit."
"I must weight against that any prejudice to this gentleman, the debtor, who is not in court today and consider a short adjournment to enable the debt to be paid. This is where there is no financial information before me or any proposal properly made out to satisfy me that this proposed adjournment is the appropriate route."
"If the court dismisses the application it shall make an order authorising the creditor to present a bankruptcy petition, either as soon as reasonably practicable or on or after a date specified in the order."