||All England Reporter
|| All ER (D) 151 (Nov)
||Bankruptcy High Court
Deputy Registrar Garwood
||Richard Millett QC and Stewart Chirnside (instructed by Day Sparkes) for WG.
|| Joseph Curl (instructed by Ashfords LLP) for WH.
||15 November 2017
Insolvency - Statutory demand - Application to set aside statutory demand issued pursuant to guarantee
Insolvency Statutory demand. Any fiduciary duty which the respondent de jure director (and creditor) of a company in administration had had to act in the interests of the company had been to look to the interests of its secured creditors, and not to the creditors as a whole. So held the Bankruptcy Court in dismissing an application to set aside a statutory demand, which had been based on a guarantee signed by the applicant in respect of the respondent's loan to the company. Among other things, the court dismissed the applicant's arguments that the statutory demand should be set aside on the grounds of misrepresentation, collateral contract or estoppel. Further, it held that it was fanciful to argue that the applicant might have a counterclaim, set off or cross-demand (equalling equalled or exceeding his liability under the guarantee) on the basis that the respondent had acted positively to persuade potential investors not to invest in the company and-or to seek to have his plan for a pre-pack administration concerning the company agreed.
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