![BR-2024-000795 - [2025] EWHC 2652 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
The Main Features of the Evidence
The Main Features of the Evidence
Mr Carter’s Evidence makes specific reference to the following asserted facts and matters to support the above-summarised grounds for the annulment application:
Mr Jones’s bankruptcy application declared that both his residence and business were in Austria. He had lived in Austria since October 2012 and owned/owns a property at Lanersbach 391, Tux, Austria ("the Austrian Property"). It includes an apartment on the top floor rented out by him to ski groups and on the lower floor a nano-brewery run by himself and a business partner. Those businesses provided his livelihood. On the middle floor is his residence, an apartment. The Austrian land registry records that he owns 538 of 541 shares in the Austrian Property as acquired in 2010 and 2011. There are 2 securities registered against it.
The Austrian Property had originally been the family home, although their matrimonial property in England (1 The Gore, Hitcham Lane, Burnham, Slough SL1 8LT) was retained whilst they were living at the Austrian Property. It ceased to be a matrimonial home but remained his home (attached to his business premises) when the marriage collapsed and divorce proceedings ensued. Mr Jones’s wife (“Mrs Sally Jones”) and children returned to the UK in August 2018. Mr Jones visited the UK on occasions for contact with his children whilst continuing to reside at the Austrian Property. To visit them, he stayed at 26 Clare Hill, Esher owned by a friend. This was only ever a temporary residence, as evidenced by his emails.
Mr Jones claimed Austrian domicile during the divorce proceedings, although his evidence to that effect was rejected when the Family Court accepted jurisdiction. In a judgment handed down on 3 August 2018 it was held that he continued to be domiciled in England, his domicile of origin. The court accepted Mrs Sally Jones’s evidence of his intention to return.
Beneficial ownership in the matrimonial home in England was transferred by Court Order to Mrs Sally Jones in 2018. Once that Order was made, and the beneficial interest was held solely by his wife as a result, his assets were all located in Austria. He should have transferred the home’s legal title upon the making of the Order but did not.
Whilst he had been a director of various companies registered in this jurisdiction, most of his appointments ceased in 2011, one ended on 31 August 2017 and one on 1 August 2020. His address on the records at Company’s House was always 1 The Gore, Hitcham Lane, Burnham, Slough SL1 8LT.
In March 2023, in the Vienna Commercial Court proceedings, Mr Jones claimed that his COMI was in Austria. This led to the Bankruptcy Order no longer being recognised and frustrated the Trustees’ attempts to realise the bankruptcy estate located in Austria.
The beneficial interest in the Austrian Property remains vested in the Trustees pursuant to the Act and in accordance with the jurisdiction accepted by Mr Jones upon his application for bankruptcy. They are at risk of exposure to liabilities arising in connection with real property such as insurance, or IAW environmental, fire and safety works.
There may have been insolvency proceedings in force in Austria, although there is a lack of clarity.
Whatever occurred in the Austrian proceedings, Mr Jones’s evidence in answer in these proceedings is consistent with his application for bankruptcy. He unequivocally proclaims that at the time the bankruptcy order was made, he was insolvent and his COMI was within this jurisdiction. In particular, he says in his witness statement:
“I consider that I did regularly conduct the administration of my interests regularly from the jurisdiction of England and Wales” due to his accommodation, and its regular use, at 26, Clare Hill, Esher since 2018. This was his “place of residence ... at a time in the period of three years prior to the date of the Bankruptcy Order”.
Not only was there a sufficient “degree of permanence at that address” but also he “was ascertainable at that address for in excess of three years leading up to the Bankruptcy Order being made”.
During the three-year period prior to the Order, he also owned the former matrimonial home, had a UK mobile phone and a UK bank account and cards. In addition, during that period he had been a director of Blush Hospitality Limited, registered within the jurisdiction. At the time of the Order, he was working as a consultant for Vistair Limited, which was also registered in the jurisdiction.
His divorce was the subject of proceedings in this jurisdiction as accepted by the Family Court on the ground of domicile.
If he relocated his COMI, that was after the Bankruptcy Order.
Mr Jones’s evidence also raises the issue and consequences of an asserted delay in the Trustees seeking annulment. In addition, he contends that annulment should not be made when such order would serve no purpose because he has no assets in the jurisdiction. I need not trouble with those two assertions. As to assets, he accepts that his application for bankruptcy as considered by the Adjudicators incorrectly identified the former matrimonial home as an asset which would form part of his bankruptcy estate. His explanation relies upon error.
Mr Jones asks the Court in any event not to annul when the Trustees have been involved in extant proceedings in Austria brought by a creditor, an Austrian bank. “It is my contention that the Applicant has been engaged in a fait accompli, with Sparkasse Bank, in their role as my Trustee in Bankruptcy, in order to try and cease my assets in Austria, whilst at the same time seeking to annul the bankruptcy order via these Proceedings” (sic). He refers to a hearing in Austria in March where, as I understand his evidence, the Trustees were claiming an interest in his estate despite the intention to seek annulment and to the bankruptcy being concluded. He states that they are refusing to sign a declaration to the effect of conclusion and contends that this is inconsistent with their intention to obtain an annulment. This too is a matter I need not address further for this judgment.
Mr Carter’s evidence in reply essentially concerns facts and matters regarding Mr Jones’s non-disclosure of any bank account in his bankruptcy application, the position concerning his directorships, the issue of delay and the purpose of the application. The Trustees’ current position is that there are no assets within the bankruptcy estate which can be recovered because of the refusal to recognise the Bankruptcy Order. The Austrian Court’s decision not to do so because COMI could not be established within this jurisdiction has caused them, it is said, to question whether the Bankruptcy Order ought to have been made. Following investigations and advice, they have decided it should not. They also address the issue of costs and expenses in detail.
There is also evidence from Mrs Sally Jones and a further, third witness statement from Mr Carter. Both are reply evidence and objection is raised to their admissibility. I will address those objections and the evidence to the extent necessary in the judgment below having read both statements “out of good will”, subject to any required decision of admissibility.