Judith Susan Portrait & Anor (as Trustees of the Gatsby Charitable Foundation) v Khadijeh Minai

For bankruptcy jurisdiction, an individual debtor’s centre of main interests must be assessed at the date the petition is presented. The court must conduct a comprehensive assessment of objective factors ascertainable by third parties, giving particular weight to the administration of economic and financial interests and to creditors’ perspectives. Habitual residence creates a rebuttable presumption, but ownership of property in England does not by itself establish either habitual residence or COMI.

A “place of residence” under Insolvency Act 1986, s 265(2)(b)(i), is a multifactorial factual concept. Ownership, a right to occupy, occasional attendance, use as a correspondence address, or occasional overnight occupation for security may be insufficient. The petition was dismissed because the petitioners failed to prove either a qualifying place of residence or COMI in England and Wales.

The petitioners, trustees of the Gatsby Charitable Foundation, presented a bankruptcy petition against the debtor based on an undisputed judgment debt of £325,752.60. The debtor challenged the court’s jurisdiction under s 265 of the Insolvency Act 1986.

The petitioners relied principally on alleged places of residence at properties in London, Companies House records, and the debtor’s ownership of English property. The debtor contended that her habitual residence and COMI were in Ukraine, where she had lived and conducted substantial business, and that her presence in England was temporary and involuntary because of the conflict in Ukraine. The central issues were whether she had a qualifying place of residence in England and Wales and whether her COMI was there when the petition was presented.

1. Jurisdiction and date of assessment. Under s 265 of the Insolvency Act 1986, the petitioners had to prove a statutory jurisdictional condition. The debtor’s COMI fell to be assessed on 2 March 2022, the date of presentation, rather than the hearing date. Earlier or later events could be considered only insofar as they shed light on the position at that date.
2. COMI. Applying Article 3(1) of the Retained Insolvency Regulation, COMI concerns the place where the debtor regularly administers her interests and which is ascertainable by third parties. For an individual who is not exercising an independent business or professional activity, habitual residence is presumed to be the COMI unless rebutted. The court must assess all relevant objective factors, including economic decision-making, earning and spending revenue, and the holding and administration of assets. Factors relating to family or social circumstances remain relevant to habitual residence insofar as they bear on the economic assessment.
3. Ascertainability. The court was not confined to information known to the petitioning creditors. A comprehensive assessment could include circumstances observable to persons dealing with the debtor in Ukraine or in connection with her Ukrainian economic interests. The issue was the evidential weight of the material, not its admissibility.
4. Place of residence. There was no single conclusive test under s 265(2)(b)(i). The expression required an ordinary-language, fact-sensitive assessment. A property might cease to be a place of residence where the debtor had abandoned it as a dwelling and used it merely as an asset held for sale. Ownership or a theoretical right to occupy was insufficient without evidence of a residential relationship with the property.
5. Application. 12 Queen Anne’s Gate was largely empty, had been marketed for sale since about 2014, and was used only for correspondence and occasional security visits. It was therefore not a place of residence. The evidence did not establish that 43 Wimpole Street or Cambridge Gate was a place of residence during the relevant period. The Companies House records and English property ownership did not outweigh the debtor’s sustained evidence of her settled life and economic interests in Ukraine.
6. Disposition. The petitioners failed to prove either a qualifying place of residence or COMI in England and Wales. The bankruptcy petition was dismissed.