IN THE MATTER OF VICTOR Y HOUSE GENERAL PARTNER LIMITED
B e f o r e :
|Re A COMPANY|
MR P. SHAW QC appeared on behalf of the Respondent/Petitioner.
Crown Copyright ©
MR JUSTICE MORGAN :
"The company is indebted to the petitioner in the sum of £819,363.46 in respect of an adjudicator's decision dated 7 November 2017 in respect of goods supplied and services rendered for the development and conversion at Victory House, Leicester Square, London for the petitioner's interim payment application number 30, dated 11 July 2017."
"The dispute referred to me is agreed to be a valuation of the completed works as at 1 September 2017 but for the purposes of an interim payment."
The next two paragraphs read:
"For the avoidance of any doubt, I am not considering the value of the final adjustments to the contract sum.
In these circumstances, I am required to carry out the valuation exercise following the contractual procedures for interim valuations."
That makes it clear that there is a difference under the contract between a valuation carried out for the purpose of an interim payment and a valuation carried out for the purposes of a final adjustment to the contract sum. The valuation for the purpose of the final adjustment to the contract sum has not yet taken place. I understand that the process has been initiated but further steps need to be taken and a figure, based on the final adjustment to the contract sum, has not yet been arrived at and, therefore, no such figure is currently due and payable.
"The effect of these provisions is that for the purposes of valuing the works for the purposes of an interim payment, the claimant was required to submit to the respondent estimates relating to each variation and failure to provide those estimates within 14 days of the date of the relevant instruction results in no value for that variation being included in interim payments."
"The ability of a petitioning creditor to levy execution against the company does not entitle him to have it wound up."
That reference to levying execution appears to me to suggest that the Lord Justice had in mind a case where a petitioning creditor had a judgment which could be executed but, nonetheless, that did not equate to an entitlement to wind up the company, the subject of the judgment debt. Ward LJ agreed with Nourse LJ. He made some comments on a case where it is appropriate to have a stay of execution and a case where it is inappropriate to petition. Those comments are at p.156G to H. I do not find them as clear as the comments made by Nourse LJ but nor do I find them in any way undermining the conclusion I am about to reach.
"The petitioning creditor having obtained a judgment and being possessed of all the remedies of a judgment creditor, was prima facie entitled to a winding up order against the respondent company and that prima facie right was not to be displaced merely by showing that the respondent company had a disputed claim against the petitioning creditor which was the subject of litigation in other proceedings."
The headnote is based on a passage in the judgment of Pennycuick J at p.23. In that passage the learned judge referred to another line of authority based on the decision of Re Amalgamated Properties of Rhodesia (1913) Ltd.  2 Ch. 115, where Sargant J, and then the Court of Appeal, discussed the approach the court should take where there was a judgment debt, a petition based on the judgment debt but an appeal against the judgment which was pending. Another example of a case involving an appeal in similar circumstances which I was shown was the unreported decision of Neuberger J in James v The Silver Fund Investment.Com Ltd., judgment being given on 15 November 2001. That was a case, like the Rhodesia case, of an appeal against a judicial determination. It was not a case of a bona fide cross-claim on substantial grounds being advanced.
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