England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Leeds Combined Court Centre 1 Oxford Row Leeds LS1
		19/07/2013

Mr Justice Norris :

1. On the 11 December 2007 Darren Masters ("Mr Masters") contracted to purchase a Bombardier Challenger aircraft. On the 14 December 2007 Coldstream S.a.r.l. ("Coldsream") was incorporated under the laws of Luxembourg. Coldstream had a share capital of €12,500 the whole of which was legally and beneficially owned by Mr Masters. On about the 8 April 2008 the contract for the purchase of the aircraft was novated so that all the rights and obligations under it were transferred from Mr Masters to Coldstream. On the 9 April 2008 Coldstream entered into a loan agreement ("the Loan Agreement") with Barclays Bank Plc ("Barclays") under which Coldstream borrowed 80% of the purchase price of the aircraft. The Loan Agreement was signed by Mr Masters (apparently in Sheffield) acting under the authority of Coldstream.
2. Under the terms of the Loan Agreement Coldstream was obliged to appoint Executive Jet Charter Limited to manage and to charter the aircraft. It is accordingly clear that the aircraft was, when acquired by Coldstream, to be operated for business purposes. Under the terms of the Loan Agreement Coldstream was also obliged to keep its place of business in Luxemburg and not (without the consent of Barclays) to establish a place of business in any other country.
3. As part of the security to support the loan Coldstream was obliged to obtain a guarantee from Mercury Tax Group Limited ("MTG"), an English company based in Leeds. MTG was a company associated with Mr Masters through which tax advice was provided to clients, Mr Masters himself being a tax specialist. As well as the MTG guarantee Mr Masters himself had to provide a personal guarantee of all of the financial and other obligations entered into by Coldstream ("the Guarantee"), and to evidence the worth of the Guarantee by serving a statement of means as a condition precedent to drawdown, and then to update it annually. The Loan Agreement recorded that Mr Masters' principal residence was in Monte Carlo. A further guarantee was to be provided by Mr Brook whose principal residence was in Sheffield. The Loan Agreement provided that Coldstream's address for service was MTG's address at Leeds and stated "Items served at this address must be marked for the personal attention of D N Masters".
4. The Guarantee was signed by Mr Masters, apparently in Miami after its terms had been explained to him by a US Licensed Attorney. The Guarantee was an unconditional and irrevocable guarantee of all of Coldstream's obligations under the Loan Agreement, and in addition declared that Mr Masters would be liable as if he were a principal and independent debtor. Paragraph 10.2 of the Guarantee declared that Mr Masters was resident in England; and by clause 11.8 he promised to maintain his residency in England. Clause 16.1 provided that any notice under the Guarantee was to be sent to MTG's address in Leeds, marked for the attention of Mr Masters. Clause 20.1 of the Guarantee said that Mr Masters' address for service of process was MTG's address at Leeds.
5. Coldstream defaulted under the Loan Agreement. Barclays called upon the Guarantee. On the 11 May 2011 Barclays obtained default judgment in the sum of $16,945,705 plus costs. On the 10 April 2012 Barclays served a Statutory Demand on Mr Masters by substituted service by leaving it with his personal assistant at SN Advisory LLP in Leeds: SN Advisory LLP was another entity linked to MTG. On the 16 May 2012 Barclays presented a bankruptcy petition in the Leeds County Court founded on that default judgment debt.
6. The petition sought the making of a bankruptcy order against

"Mr Darren Neil Masters of SN Advisory LLP Marian House… Leeds… Occupation Unknown".

Paragraph 1 of the standard form petition deals with the EC Regulation; but all of its alternatives were deleted. Instead the petition recited

"The debtor is not resident in England and Wales. I am presenting this petition to this County Court because Rule 6.9A[(3)][(5)][(6)] applies and within the 6 months immediately preceding its presentation the debtor has carried on business in England and Wales and for the longest part of the period during which the debtor carried on business within that period of 6 months the place of business has been situated in the district of this County Court".

7. By section 265(1) of the Insolvency Act 1986 a bankruptcy petition shall not be presented to the court unless the debtor :-

a) Is domiciled in England and Wales; or

b) Is personally present in England and Wales on the day when the petition is presented; or

c) Has at any time in the period of 3 years ending with the day on which the petition is presented

i) Been ordinarily resident or had a place of residence in England and Wales; or

ii) Carried on business in England and Wales.

Of those options Barclays elected for (c)(ii). Accordingly the burden lay on Barclays to establish that Mr Masters had carried on business in England and Wales sometime after the 16 May 2009.

8. Mr Masters challenged the jurisdiction so claimed. In a witness statement dated 1 March 2013 he recorded that he had been advised that there did not appear to be jurisdiction to make a bankruptcy order against him. He said:-

"…the Petition is based on an assertion that I have carried on business in England for the longest part of 6 months preceding the Petition. To be more precise that I have carried on such a business in the district of the Leeds County Court. This is just wrong…for the avoidance of doubt I am a member of SN of Marian House…SN is an LLP which was established in August 2011. Its members are Richard Simon Wilson who resides in Ireland and myself… I personally do not carry on any business in England nor was I carrying business on in England at any time in the 3 years preceding the presentation of the petition. It is true that I have been from time to time a director or member of a number of companies or LLPs that have been registered in the UK but I am advised that does not constitute the carrying on of business by me…I left the UK in 2007 after the breakup of my marriage and I established a company in Monaco and I was based there as a resident since 2007… I am now in the process of moving my business base to Florida where I have my permanent family home…It is common knowledge that I was a director of an English company [MTG] until it went into administration on 8 September 2009. In order to realise the assets of MTG…at the request of the administrators… SN was formed…"

9. This led Barclays to propose an amendment to the petition. They proposed to substitute for the words "occupation unknown" the words "Tax Advisor" and to assert that Mr Masters had been carrying on business as:-

"A Tax Advisor either through SN Advisory LLP or independently of that partnership".

10. This proposed amendment reflected the evidence that had been placed before the court when Barclays had applied for permission to serve the petition out of the jurisdiction. In a witness statement of the 20 November 2012 Mr Debbage of Barclays had said (in paragraph 28) that Mr Masters had in the last 3 years conducted business in England and Wales working for both MTG and SN Advisory LLP, both of which were based in Leeds. But in the course of that evidence (and by way of explaining the circumstances out of which the bankruptcy petition arose) in a section of his witness statement entitled "Background to the claim" Mr Debbage had referred to the Loan Agreement, the Guarantee, the claim on the Guarantee and the legal proceedings to which that claim had led. But Mr Debbage did not say that this background material illustrated that Mr Masters was carrying on the business of acquiring aircraft for charter. He was asserting that the business which Mr Masters carried on in England was that of a tax adviser.
11. In a further witness statement made on the 7 March 2013 Mr Debbage returned to the jurisdiction question and addressed the challenge that Mr Masters had made. Mr Debbage's response to Mr Masters' assertion that he had not carried out any business in England since the 16 May 2009 was

a) To refer to the website of SN Advisory LLP (which said that Mr Masters worked out of the Monaco office but was in London and Leeds usually at least once a week):

b) To refer to the circumstances of the service of the statutory demand (where the recipient had said that Mr Masters worked from time to time at the office in Leeds but that it was not his main business trading address):

c) To refer to a number of UK appointments which Mr Masters held with MTG, SN Advisory LLP and associated companies:

d) To refer to the Guarantee (but only to the governing law and exclusive jurisdiction clauses, rather than to the provisions dealing with residence):

e) To note the fact that Mr Masters held a current solicitors' practicing certificate.

No reliance was placed on Mr Masters having any involvement with the business of acquiring aircraft for the purposes of commercial charter.

12. Mr Masters contested each of these alleged bases on which it was said he carried on business in England. So far as the Guarantee went he said:-

"I do not see how the jurisdiction and venue clauses of the Guarantee prove that I was carrying on business at the relevant time."

13. The hearing of the petition was set for the 29 April 2013. The burden lay on Barclays to prove the facts which they alleged in the petition or the proposed amended petition (the amendment not having been pursued, but the matters to which it referred being accepted as in issue). Shortly before the hearing newly-instructed counsel for Barclays lodged a skeleton argument which the allegation that Mr Masters carried on the business of a Tax Advisor in a subsidiary position. Instead the skeleton argument put in primary place the argument that:-

"The Debtor was carrying on a business independently of that of [Coldstream] (i.e. the acquiring of the Aircraft which, having agreed the same, he sought to complete through and using [Coldstream])".

14. It was this new argument (that Mr Masters carried on the business of acquiring aircraft) on which the hearing on the 29 April and the 13 May 2013 concentrated. It was the only argument with which DJ Jordan dealt in his judgment. The pressures of giving an extempore judgment on complex legal arguments in a busy list are well recognised: an appeal court must therefore focus on the substance of what the judge has decided rather than upon the mode of expression. The substance of DJ Jordan's judgment was:-

a) That he had been asked to deal with the case on the basis of the written material and submissions without the benefit of cross-examination;

b) Mr Masters had personally contracted to buy the aircraft;

c) That Coldstream had been formed solely for the purpose of purchasing the aircraft;

d) Coldstream was therefore a vehicle whereby Mr Masters passed on his personal liability and obligations, and in doing so he took on full responsibility for the operation of the Loan Agreement;

e) That on the evidence Coldstream "as did no doubt the debtor" intended to operate the plane commercially i.e. to carry on as a business;

f) That the issue before him was whether or not that business had been carried on in the preceding 3 years;

g) That he was satisfied "that one month before the applicable period …. the company which he had formed solely for this purpose… drew down the money in order to operate this aeroplane";

h) The novation of the contract was on the basis that Mr Masters' personal guarantee covered all of the subsisting liabilities and the responsibilities that he would have had if he had continued to purchase the aeroplane in his own name;

i) That although this was a single transaction the decision in Conroy v Kenny [1999] 1 WLR 1340 was authority for the proposition that a "one-off" transaction can still amount to trading;

j) That the extensive nature of the personal guarantee and the fact that Coldstream was substituted for Mr Masters' own purchase obligations were (on the authority of Re Brauch [1978] 1 Ch 316) sufficient to satisfy him that the debtor "was carrying on business in England and Wales by that operation of his obligations through that company and by the guarantee of the extensive obligations of that company";

k) That there was therefore jurisdiction to make a bankruptcy order.

15. The Appellant's Notice argues that the District Judge was wrong in law to find that Barclays had discharged the onus of proving that Mr Masters carried on business in England and Wales by operating a plane between the 16 May 2009 and the 16 May 2012 without any evidence about the operation of the plane, without any assertion in the evidence filed on behalf of Barclays that Mr Master had carried on the business of operating the plane, without any explanation in evidence by Barclays of how the giving of a guarantee could in itself constitute the carrying on of a business or how continuing liability under the guarantee itself constituted the carrying on of the business. The Grounds of Appeal also argue that DJ Jordan had wrongly exercised his discretion to make a bankruptcy order having regard to the way in which reliance on the business of operating a plane had emerged.
16. The principles on which I intend to approach on these Grounds of Appeal are as follows:-

a) Whether Mr Masters was carrying on a business after the 16 May 2009 in England is a mixed question of fact and law. It involves District Judge Jordan deciding what Mr Masters did, when he did it, and whether what he did amounted in law to carrying on of a business.

b) The appeal is a review, and not a re-hearing. But once an Appellant has shown a real prospect that a finding or inference made by the trial judge in wrong, then the role of the Appellate court is to determine whether or not this is so, giving full weight to the advantages enjoyed by the judge at first instance. The weight to be attached to the findings of the judge will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court: the greater that advantage the more reluctant the appellate court will be to interfere. See generally Assicurazioni Generali [2002] EWCA Civ 1642 at paragraphs [15] and [17].

c) An appeal on fact is different from the review of the exercise of a judge's discretion. It is not because there is room for two views of the facts that the appeal court is reluctant to interfere with the trial judges conclusions. A finding of fact involves a finding that, on the balance of probability, something actually existed, or an event actually occurred. The deference that the appeal court pays to the judges finding of fact is dependant on the advantage that the judge had by reason of participating in the trial process: there are plainly cases in which the appeal court is in as good a position as the judge, for example in drawing inferences from documents: see Manning v Stylianou [2006] EWCA Civ 1655 at paragraph [19].

d) The burden lay on Barclays to prove that, on the balance of probabilities, Mr Masters carried on a business in England after the 16 May 2009.

e) DJ Jordan had to assess whether that burden had been discharged by reference only to the transactional documents. Barclays led no direct evidence that Mr Masters had been involved in the business of acquiring aircraft for charter businesses in England after May 2009.

f) Mr Masters did give direct evidence that he had not carried on business in England since October 2007. Before that unchallenged evidence is disbelieved the court is required to exercise caution. It is sometimes said that the evidence has to be "inherently unbelievable" (though that may not fully capture the subtlety of the test): see Wilkinson Commissioners of Inland Revenue [1998] BPIR 418.

g) It was common ground that merely being a director of or shareholder in a company or being a member of a limited liability partnership would of themselves not suffice to establish that an individual was carrying on business in England. That was why the "tax advisor case" was reduced to its secondary position at the hearing before the District Judge (and did not feature at all in the argument before me). It was also common ground that the mere giving of a guarantee could not of itself amount to the carrying on of business.

h) It is nonetheless possible for an individual who is a participator in several companies himself to carry on an independent business. Section 4(1)(d) of the Bankruptcy Act 1914 was a predecessor of section 265 of the Insolvency Act 1986. It provided that a creditor should not be entitled to present a bankruptcy petition against a debtor unless the debtor within a year before the date of presentation of the petition "has carried on business in England, personally or by means of an agent or manager". In Re Brauch [1978] 1 Ch 316 at [328] Goff LJ (with whom the other members of the court agreed) held:-

"It would be wrong to hold that section 4(1)(d) applies to a man who is running his companies business even though he be the sole beneficial shareholder and in complete control. There is, however, nothing in Salomon v Salomon [1897] AC 22 in consistent with finding that such a person is also conducting a separate business of his own…".

At p330F Goff LJ said that in order to reach that conclusion:-

"One has to take the totality of the evidence and see whether or not the right conclusion is that there was…a business being carried on by the debtor independently of the business of the companies".

17. In Re Brauch the debtor was involved in some 90 companies. The Court of Appeal held that he was carrying on personally the business of promoting companies, or acquiring shell companies to speculate in land, or alternatively the business of finding suitable sites for development or investment, negotiating a price, obtaining the necessary valuations and finance, and then causing the properties to be vested in companies in a "one company per project" scheme. Once the property came to be vested in the company its future management, development and realisation was the business of the company. But all the preliminary stages were the business of the debtor.
18. In Anglo Irish Bank v Flannery [2013] BPIR 1 Chief Registrar Baister set out (at paragraph [13]) the 12 indicators which had persuaded the Court of Appeal in Re Brauch to which the conclusion that the debtor was carrying on a separate business of promoting companies. I will not lengthen this judgment by repeating them: but I regard the Chief Registrar's summary as a clear exposition of the nature and quality of the evidence required. In the case before him evidence of that nature and quality was missing and the Chief Registrar concluded (at paragraph [33]) that "a comparison of the position in this case with that in Re Brauch only serves to highlight the tenuous nature of the petitioning creditor's case".
19. On the other hand, a case in which there was evidence of the requisite nature and quality is Re Clark [1914] 3 KB 1095. Mrs Clark was the managing director of three hotel companies, but the court regarded it as impossible to say that that constituted the carrying on of a trade by Mrs Clark. Using borrowed money she brought some land on which to build a fourth hotel. She proposed to sell the land to a company, and herself to guarantee the dividend on the preference shares of the company during the period of construction of the hotel. The Court of Appeal held that Mrs Clark was carrying on the business of a company promoter dealing in hotels. It acknowledged that there was but one isolated transaction. But it held that Mrs Clark had been carrying on business when she bought the land with borrowed money, and did not cease to carry on business simply because she had sold the land to a company because:-

"… a person does not cease to be a trader when he puts up his shutters and does not come near the place, but he is deemed to be for all purposes a trader until he has paid all the debts relating to the trade. Here there is a debt of £25,000 which has not yet been paid and which was contracted in the course of trade for the very purpose of enabling her to acquire these lands. I think one is entitled, nay, bound, to have regard to the fact that she has promoted [the other three hotels]…"

The circumstances may thus indicate that in a particular context a single transaction is sufficient to demonstrate the carrying on of a business.

20. This is consistent with principle. The number of occasions upon which a person has been involved in the promotion or establishment of businesses obviously assists towards the conclusion that that person has an independent business of promoting companies. In Brauch there were 90 companies. In the Australian case of Commonwealth Bank of Australia v Oswal [2013] FCA 391 the debtor was concerned as promoter of or investor in 12 companies connected to the petro-chemical industry which the judge regarded as "a separate business to the business conducted by each of the companies". But in principle there is no reason why a single transaction should not constitute the carrying on of business if, on the totality of the evidence, that appears to be the position: see Conroy v Kenny [1999] 1 WLR 1340.
21. I turn to the application of those principles. What is the totality of the evidence that the debtor carried on the business of acquiring aircraft in England independently of any company since the 16 May 2009?
22. Barclays led no direct evidence but relied on inferences to be drawn from the transactional documents. It did not rely upon Mr Masters being resident. It relied upon his carrying on business. Mr Masters led direct evidence that he had not carried on business in England since October 2007. It is true that he led that evidence to meet a case that he was carrying on business as a tax advisor (not as an acquirer of aircraft). But he was responding to the case then made against him. A court would need to be able to draw upon very strong inferences if it was to regard as "inherently unbelievable" direct evidence of the nature given by Mr Masters, particularly when the case run against him had emerged only in a skeleton argument and was contrary to the case actually advanced in the petition ("occupation unknown") and in the proposed amended petition ("tax advisor").
23. What inferences may be drawn from the transactional documents as to what Mr Masters actually did? In summary it appears to me to be this:-

a) He personally contracted to buy a aircraft:

b) He became the sole shareholder in a Luxembourg company established a few days later:

c) He participated in a novation of the aircraft purchase contract to that company:

d) He facilitated the completion of that purchase contract by agreeing to give a personal guarantee to enable the company to borrow from Barclays:

e) He probably assisted in procuring MTG to give a corporate guarantee (because where documents are to be served on MTG they are to be marked for Mr Masters attention, thereby suggesting both a degree of knowledge and an assumption of responsibility on his part):

f) The probability is that the purchase, the incorporation, the novation and the financing are not are succession of happy accidents, but are part of a plan.

24. What inferences may be drawn from the transactional documents (or any other material) that these alleged business activities took place in England rather than Luxembourg or Miami)? The following points seem to me to be material:-

a) There is simply no evidence as to where the contract for the purchase of the plane was negotiated, or by what law it is governed, or which courts have jurisdiction over disputes. It cannot be assumed that the contract itself has any connection with England.

b) The plane was originally to be registered in Luxembourg:

c) The plane was maintained in America.

d) There is simply no evidence about the novation of the contract. One cannot assume any connection with England.

e) The Loan Agreement contains and English choice of law clause and provides for English jurisdiction.

f) The Loan Agreement was signed by Mr Masters in Sheffield.

g) The borrower is a Luxembourg company:

h) The Loan Agreement is secured by a Luxembourg mortgage.

i) The Loan Agreement is supported by the Guarantee.

j) The Guarantee was signed in America.

k) The Guarantee contains and English choice of law clause and for the jurisdiction of the English courts.

l) The address for service under the Loan Agreement is MTG's address (for the attention of Mr Masters).

m) The Guarantee declared that Mr Masters was resident in England and contained an obligation to maintain an English residency.

n) The Guarantee provided before notices to be sent to (and proceedings to be served at) MTG's address at Leeds marked for the attention of Mr Masters.

25. This evidence is, in my judgment in its totality insufficient to establish on the balance of probabilities that Mr Masters carried on in England the business of acquiring aircraft for the purpose of chartering. Choice of law clauses and jurisdiction clauses tell one how particular obligations are to be ascertained and enforced, but tell one nothing about where the business itself is being conducted. Addresses for the delivery of notices and for the service of proceedings may provide some clue: but may simply indicate that the obligor is bound to provide a relevant address within the jurisdiction (no matter where the business itself is conducted). The evidence of what Mr Masters actually did in England (sign one document) is extremely thin. It is overwhelmed by evidence of activity outside England. There really is no basis for saying that whilst Coldstream carried on its business in Luxembourg Mr Masters carried on a separate independent business in England.
26. What then is the evidence that Mr Masters did any of these things in England in the three years immediately preceding the presentation of the petition? All of the evidence which I have so far addressed relates to events that occurred in 2007 and 2008. Not one of the events occurred after the 16 May 2009. DJ Jordan was misled by an error in the evidence to the conclusion that the drawdown occurred in April 2009 (which he regarded as sufficiently close to the 16 May 2009 to constitute the carrying on of business within the relevant period). But the drawdown of the loan occurred in April 2008 and there is no sense in which drawing down a loan in April 2008 can constitute carrying on business in and after May 2009.
27. Barclays can point to the fact that Mr Masters continued be liable under the Guarantee. But liability under a guarantee after the 16 May 2009 does not itself constitute carrying on business. Barclays attempted to suggest (relying upon Re Clark (supra)) that there were still outstanding debts in relation to the acquisition of the aircraft which meant that Mr Masters should be regarded as continuing to trade (until such time as those debts were paid). But there was no evidence of any continuing debts and the continuation of debts cannot be inferred from the material that exists. First, there is simply no material to suggest that there were any outstanding and unperformed obligations under the aircraft purchase contract. Second, if there were outstanding obligations then they were the outstanding obligations of Coldstream (and not of Mr Masters). That is the whole point of novating a contract (as opposed to assigning the benefit and taking from the assignee an indemnity against any continuing obligations of the assignor). Novation puts an end to the original contractual obligations and substitutes a different set of obligations. The only obligations of Mr Masters arose under the Loan Agreement (for example, to provide a statement of means) and under the Guarantee. But these were not continuing obligations of Mr Masters as an acquirer of aircraft for chartering purposes: they were obligations that arose out of the conduct of Coldstream's business (where Coldstream had to get its shareholder to support its loan application to fund its business).
28. Finally Barclays relied on a Defence which Mr Masters had filed in May 2011 in proceedings brought by them in the Commercial Court. In paragraph 15 of his Defence Mr Masters said that he had sought to mitigate losses arising by trying to arrange the sale of the aircraft in July 2010: and (in paragraph 16) that he believed that he might be able still to arrange the sale or refinancing of the aircraft at an advantageous price thereby reducing Barclays' losses. Barclays said that this illustrated that it was Mr Masters who was carrying on the business and not Coldstream. But this demonstrates, at its highest, that Mr Masters had the ability to influence what Coldstream did; and at its lowest that Mr Masters could, as someone exposed under the Guarantee, claim to be subrogated to Barclays' rights to deal with the aircraft. It falls far short of demonstrating that in 2011 Mr Masters was personally and independently conducting a business in England.
29. In the result I allow the appeal. I set aside the Bankruptcy order. I direct that Barclays shall pay the Official Receiver's costs (which I understand to be in the sum of £194.00). I direct that Barclays shall pay Mr Masters' costs of the petition and of the appeal (those costs to be the subject of a detailed assessment in default of agreement). There being no contest that Mr Masters is liable under the judgment obtained by Barclays I shall direct that the liability of Barclays under the orders for costs shall be set off against Mr Masters liability under the judgment debt.
30. I should record that the argument before me proceeded on the footing that (and, indeed it was submitted that) Barclays could enforce its judgment against Mr Masters in Florida. It was said that that is the course which should have been taken, rather than presenting a bankruptcy petition in Leeds.
31. I express my appreciation of the excellent argument on each side.