![[2025] EWHC 2760 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
Conclusions
Section 212 Application
In light of the decision I have reached about the application of Rule 5.6(6) it is unnecessary to deal with this aspect of the section 212 Application. However, it was fully argued and heavily opposed. I will therefore deal with it briefly. The section provides:
“Summary remedy against delinquent directors, liquidators, etc.
212 (1) This section applies if in the course of the winding up of a company it appears that a person who—
is or has been an officer of the company,
has acted as liquidator . . . or administrative receiver of the company, or
not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company,
has misapplied or retained, or become accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company.
The reference in subsection (1) to any misfeasance or breach of any fiduciary or other duty in relation to the company includes, in the case of a person who has acted as liquidator . . of the company, any misfeasance or breach of any fiduciary or other duty in connection with the carrying out of his functions as liquidator … of the company.
The court may, on the application of the official receiver or the liquidator, or of any creditor or contributory, examine into the conduct of the person falling within subsection (1) and compel him—
to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks just, or
to contribute such sum to the company’s assets by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just.
The power to make an application under subsection (3) in relation to a person who has acted as liquidator ... of the company is not exercisable, except with the leave of the court, after [he] has had his release.
The power of a contributory to make an application under subsection (3) is not exercisable except with the leave of the court, but is exercisable notwithstanding that he will not benefit from any order the court may make on the application.”
- Heading
- Introduction
- The relevant facts
- Amendment to rely upon the statutory release
- Amendment to rely upon the Limitation Clause
- the conduct of the parties
- the interests of the administration of justice.”
- The merits of the Limitation Clause amendment
- In Fakhry v Pagden [2020] EWCA Civ 1207 ; [2021] B.C.C. 46 , a case arising out of the same facts as the case before me, but in relation to a different aspect, concerning alleged procedural irregulari
- The statutory trust is explained in Goode on Principles of Corporate Insolvency Law (5th edition) (" Goode ") at paragraph 3-09 as follows
- The case usually cited for this proposition is a tax case in the House of Lords, Ayerst (Inspector of Taxes) v C. & K. (Construction) Ltd [1976] A.C. 167 ("Ayerst") As Goode goes in to explain at paragraph 3-10, this is a particular type of trust tha
- "The company thus holds the assets for statutory purposes, not for persons." Clearly, as the trustee of a statutory trust, a liquidator is a fiduciary and owes corresponding fiduciary duties, such as a duty not to profit otherwise than through the re
- Determination of the amendment application
- Conclusions