Success for Kirsty Malloch in contested bankruptcy annulment application
November 21, 2023
Kirsty Malloch from Exchange Chambers has successfully acted in a two-day contested bankruptcy annulment application.
The case concerned a bankruptcy annulment application under Section 282 of the Insolvency Act 1986.
Section 282(1)(a) of the Insolvency Act 1986 provides that the court “may annul a bankruptcy order if it at any time appears to the court… that, on any ground existing at the time that the order was made, the order ought not to have been made“.
Generally, the court considers three questions:
- What were the grounds existing at the time that the order was made;
- Whether, on those grounds, the order ought not to have been made; and
- Whether, if the order ought not to have been made, the court should now exercise its discretion to annul the order.
The discretion element is somewhat modified if it becomes apparent to the court that an order has been made without any jurisdiction at all. In such a case the bankrupt is entitled to have the order set aside as of right.
The application to annul the order was made on a number of grounds with the bankrupt arguing that the court did not have the jurisdiction to make the order as his centre of main interest was outside the UK. He also argued that he had not received the petition and statutory demand and disputed the petition debt.
Kirsty Malloch, acting for the bankrupt’s petitioning creditor and instructed by Graeme McParland and Jennifer Lockhart at Brabners, successfully opposed the application with the court ruling that, on the balances of probabilities, the bankrupt had failed to discharge the burden on him to establish that the Bankruptcy Order ought not to have been made.
