Neutral Citation No:  NICh 29
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
(a) The making of a Bankruptcy Order on 31 March 2017 ('the Order') in respect of the Appellant; and
(b) The refusal of the Master to annul or rescind the Order.
(a) To annul the Order pursuant to Article 256 of the Insolvency (Northern Ireland) Order 1989 ('the 1989 Order') on the basis that the Order should have been made: or
(b) That the court should rescind the Order under Article 371 of the 1989 Order.
"16. I turn then to what at least to my mind is the central point in this case, which is whether or not Mr Caldwell has an arguable case. In this connection it is I think, common ground, and consistent with what was said by Laddie J in paragraph 60 of his judgement in Everard v The Society of Lloyd's  EWHC 1890  BPIR 1286, that The court's assessment of the seriousness of the challenge should not differ from one stage to the other.
In other words, if there is what he called 'a genuine triable issue' then, whether it is raised at the statutory demand stage, the petition stage or the annulment stage, it is an equally valid point. However, as I mentioned, that is not an end of the matter in this case, because, even if there is a genuine triable issue, that does not automatically mean that I should annul the bankruptcy: I still have a discretion. But, subject to that, as I think Mr De La Rosa, albeit sub silentio, all but accepted, the test is the same: is there a genuine dispute?"
"The court is not holding a full trial of the matter: it must only decide if the grounds appeared to be substantial. They must be genuine. The grounds of the dispute do not consist of some ingenious pretext invented to deprive a creditor of his just entitlement. It must not be a mere quibble."
- There has been no examination of the background to the negotiation of the new facility. Given the present stage of these proceedings there has been no discovery of documents such as documents in the possession of the bank recording discussions in relation to the facility; any recommendations of Mr Stark to his line manager: notes of any relevant Credit Committee in its consideration of any such recommendation and/or any enquiries that may have been made before the new facility was offered: no clarification that may have been sought from the Appellant; or indeed any records of the Company to whom the facility was offered and by whom it was accepted.
- If the Appellant is right, that there was a link between the Guarantee and the additional Facility 6, and the fact that the funds under Facility 6 were not advanced, the court would require to consider (a) whether there was a misrepresentation: and/or (b) what was the consideration for granting the Guarantee to secure the entirety of the new facility?
- The responses, or lack of responses, on the part of the Appellant can certainly be taken into account in considering her assertions, but I do not accept that without more they remove entirely any argument as to whether there is an arguable case. Rather they go to the weight of her evidence rather than, at this stage, undermine her assertions in terms of a genuine argument. It should be remembered that it is a precondition to the exercise of the court's power that the issue being advanced was in existence at the time that the Statutory Demand was made, yet was not made.
- Facility 6 was a new provision, as was the requirement for the provision of the Guarantee in new terms to any that might have been required beforehand, as is the fact that Facility 6 was never advanced. That factual matrix is not in dispute. What is in dispute is the correlation, if any, between the Guarantee and Facility 6. That appears to this court to be an area of genuine consideration and should be the subject of proper examination with the benefit of all evidence.