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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wei Hai Restaurant Ltd v HM Customs & Excise [2002] EWCA Civ 1647 (17 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1647.html
Cite as: [2002] EWCA Civ 1647
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IN THE COURT OF APPEAL (CIVIL DIVISION)CHANCERY DIVISION
ON APPEAL FROM THE CHANCERY DIVISION
(HIS HONOUR JUDGE BEHRENS)
Strand London, WC2 Thursday, 17th October 2002 |
||
B e f o r e :
____________________
| WEI HAI RESTAURANT LIMITED | Applicant | |
| -v- | ||
| HM CUSTOMS & EXCISE | Respondents |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondents did not appear and were unrepresented.
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Crown Copyright ©
- LORD JUSTICE PETER GIBSON: On 21st February of this year in the Leeds District Registry Wei Hai Restaurant Limited ("the Company") was compulsorily wound up by District Judge Spencer on the petition of the Commissioners of Customs and Excise ("the Commissioners"). The petition had been presented on 4th July 2001 by the petitioners, who claimed to be creditors in the sum of £60,942.21 for VAT, default surcharges and interest. There were three adjournments before the order was made. I am told today by Mr Chik, appearing as a director for the Company, that the adjournments were not at his request. Whether that is right or not, it is undoubtedly the fact that the petition was left hanging around for far longer than is normal on these occasions, the court usually setting its face against there being a large interval of time between the presentation of the petition and the decision whether the petition should be dismissed or an order should be made.
- The Company applied by Mr Chik promptly for the review and rescission of the winding up order. As I understand it, it was on the basis of the possibility of a sale of the Company's business and assets for £25,000. There was in fact no evidence, as such, that had been put in by the Company. There was no affidavit in opposition to the petition as required by rule 4.18 of the Insolvency Rules 1986. Nor did Mr Chik ever file any witness statement or affidavit showing that, objectively, it was clear that an offer for £25,000 had been made and that that was a proper price. In the circumstances District Judge Flanagan on 7th March 2002 refused the application.
- The Company then appealed against both the winding up order and the refusal of rescission. That was heard by His Honour Judge Behrens, sitting as a High Court Judge. On 23rd May 2002 he dismissed the application. For him it was significant that it was not in dispute and had never been in dispute that a sum of £9,400 odd was due from the Company. The Commissioners were claiming more, but that sum was undisputed.
- The Company seeks permission to appeal to this court from the judge's order both in respect of his dismissal of the appeal from the winding up order and the dismissal of the appeal from the order refusing to rescind that order. He asks this court to rescind the winding up order. He also asks for a stay. This application is therefore for permission to bring a second appeal. Accordingly, CPR 52.13 applies. This court has no jurisdiction to grant permission to appeal unless it considers that an important point of practice or principle arises or there is some other compelling reason why this appeal should be heard.
- I asked Mr Chik to identify what was the important point of principle or practice. He informed me that it was that there had been an abuse of the court process and that false evidence had been given. That is, of course, a very serious accusation. When asked where there was proof of that, he simply pointed to a document which showed that an earlier petition by the Commissioners, had been dismissed. That does not prove any abuse of court process, nor that false evidence was given. Petitioners very often present petitions claiming debts the full amount of which the court does not accept. Nevertheless, if there is an undisputed debt which has fallen dut but has not been paid the practice is that the court will treat that as satisfying section 123(1)(e) of the Insolvency Act 1986, by which a company is deemed unable to pay its debts if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. Mr Chik told me that the £9,400 debt was only agreed on the day of the hearing of the petition when the order was made. I think he misunderstands the position. He then acknowledged that £9,400 was due. So far as I can see, the Commissioners never accepted that that was the only sum that was due. His complaint is that he was not given time to pay that debt. But the petition, as I have indicated, had been presented as long ago as July of the previous year, and the Company had not paid what was due or reached an accommodation with the Commissioners.
- I am not satisfied that any of the points which Mr Chik wishes to raise in this court constitutes an important point of practice or principle. On the contrary, it seems to me that this is yet another case, familiar to all who have experience of this jurisdiction where a debtor company alleged to be unable to pay its debts as they fall due is dissatisfied with parts of the claims made against it but is unable to show that there is no debt which has fallen due and which has not been paid.
- In my judgment therefore, not only is there no important point of principle or practice, there is no other compelling reason why this appeal should be heard. It follows that I must dismiss this application.
Thursday, 17th October 2002