Sands & Anor v Singh & Ors

For the purpose of Insolvency Act 1986 s. 283A(3), a trustee makes an application when the application notice and proper fee are delivered to the court within the statutory period. Formal issue is unnecessary where the statutory language focuses on the trustee’s application. Administrative delay or transfer of the papers to another court centre does not invalidate the application. CPR 23.5, applied through Insolvency Rules 1986 r. 7.5(1), supported that conclusion.

The applicants, including the trustee in bankruptcy of Tarlochan Singh, sought possession and sale orders concerning a dwelling-house registered in the bankrupt’s name and occupied by his former wife. The issue was whether the trustees had applied within the three-year period specified by Insolvency Act 1986 s. 283A(2), so as to avoid the statutory vesting consequence.

On 26 September 2014, before expiry of the period, the trustees delivered the application notice and tendered the relevant fee at Coventry County Court. The papers were transferred for processing and the application was issued by the Birmingham District Registry on 1 November 2014. The central question was whether delivery to the court, rather than formal issue, constituted an application under s. 283A(3).

1. Application made in time. The application was made on 26 September 2014, when the trustees lodged the application notice and tendered the proper fee at Coventry County Court. The subsequent administrative transfer and issue at Birmingham did not deprive it of effect.
2. Construction of s. 283A. Section 283A(3) required the trustee to apply for an order for possession or sale during the relevant period. Its wording focused on an act of the trustee and did not require a further act by the court. The trustees had done everything they could do to make the application.
3. Authorities and procedural rules. Salford CC v. Garner [2004] H.L.R. 35 concerned statutory language under which proceedings were “begun” and was binding in that context, but did not determine the different question under s. 283A. Secretary of State for Trade and Industry v. Vahora and Others [2008] Bus. L.R. 161 supported treating an application as brought before issue where the papers had been delivered to the court office. Lewis v. Metropolitan Property Realisations Ltd. [2009] EWCA Civ 448 and Barnes v. St. Helens Metropolitan Borough Council [2007] 1 WLR 879 illustrated the distinction between a claim being brought and proceedings being started.
4. Conclusion. The application was brought in time and satisfied s. 283A(3). The preliminary issue was determined in favour of the trustees.