BIRMINGHAM DISTRICT REGISTRY
33, Bull Street,
BIRMINGHAM B4 6DS.
B e f o r e :
|In the matter of CLIVE VINCENT McNALLY|
|And in the matter of the INSOLVENCY ACT 1986|
The First Respondent did not appear and was not represented
Mark Cawson QC instructed by Gateley appeared for the Second Respondent
Hearing date: 1st March 2013
Crown Copyright ©
JUDGE PURLE QC:
"The Application be listed for a Case Management Conference on Friday 31st August 2012 at 11:00am (time estimate of 4 hours) with a view to determining whether the Application should be allowed to proceed at all. Reserved to District Judge Musgrave."
"5.21 Entitlement to vote
(1) Subject as follows, every creditor who has notice of the creditors' meeting is entitled to vote at the meeting or any adjournment of it.
(2) A creditor's entitlement to vote is calculated as follows—(a) where the debtor is not an undischarged bankrupt and an interim order is in force, by reference to the amount of the debt owed to him as at the date of the interim order…"
"5.22 Procedure for admission of creditors' claims for voting purposes
(1) Subject as follows, at the creditors' meeting the chairman shall ascertain the entitlement of persons wishing to vote and shall admit or reject their claims accordingly.
(2) The chairman may admit or reject a claim in whole or in part.
(3) The chairman's decision on any matter under this Rule or under paragraph (3) of Rule 5.21 is subject to appeal to the court by any creditor or by the debtor.
(4) If the chairman is in doubt whether a claim should be admitted or rejected, he shall mark it as objected to and allow votes to be cast in respect of it, subject to such votes being subsequently declared invalid if the objection to the claim is sustained.
(5) If on an appeal the chairman's decision is reversed or varied, or votes are declared invalid, the court may order another meeting to be summoned, or make such order as it thinks just.
The court's power to make an order under this paragraph is exercisable only if it considers that the circumstances giving rise to the appeal are such as give rise to unfair prejudice or material irregularity…"
"5.23 Requisite majorities
(1) Subject to paragraph (2), at the creditors' meeting, a resolution is passed when a majority (in value) of those present and voting in person or by proxy have voted in favour of it.
(2) A resolution to approve the proposal or a modification is passed when a majority of three-quarters or more (in value) of those present and voting in person or by proxy have voted in favour of it.
(3) In the following cases there is to be left out of account a creditor's vote in respect of any claim or part of a claim—
(b) where the claim or part is secured;
(7) The chairman's decision on any matter under this Rule is subject to appeal to the court by any creditor or by the debtor and paragraphs (5) to (7) of Rule 5.22 apply as regards such an appeal."
Starting point: paragraphs 15 and 17 of the Appellant's witness statement of 26th April 2012.
This assumed a Trewent valuation of £850,000 less the costs of sale of £27,000.
The votes cast for the IVA proposal according to paragraph 17 were £10,124,679.69.
Example A (below) assumes instead a valuation of £700,000 less the (undisputed) costs of sale of approximately £20,000.
Example B (below) assumes instead a valuation of £650,000 less the (undisputed) costs of sale of approximately £20,000.
£3,403,177.38 (at petition date) LESS £350,000 LESS equity balance (£100,000-£20.000 = £80,000) LESS £159,542.39 (realisations) = £2,813,634.91
Voting totals (paragraph 17 of witness statement) become £13,452,197.10
£3,403,177.38 (at petition date) LESS £350,000 LESS equity balance (£50,000-£20.000 = £30,000) LESS £159,542.39 (realisations) = £2,763,634.91
Voting totals (paragraph 17 of witness statement) become £13,502,197.10