Bankruptcy annulled as debtor's COMI was not England

The only substantial creditor in a bankruptcy successfully applied to have a bankruptcy order annulled on the basis that the debtor’s COMI (centre of main interest) was not England and Wales.

The debtor (Manuela Radeva) applied for her own bankruptcy on 4 March 2019. The adjudicator made a bankruptcy order on 27 March 2019. Mr Kooter, who was owed £206,000, around 99.5% over the overall total due to creditors, applied for the bankruptcy order to be annulled on 23 July 2019. The final hearing having been subject to several adjournments, the bankruptcy order was annulled on 24 October 2022.

Habitual residence is a factual exercise having regard to all the circumstances as to a person’s real choice of country as a place of residence. There was no dispute that the debtor’s original habitual residence had been Bulgaria. Contrary to the debtor’s assertions, there was no evidence that she obtained a university education in the UK. She failed to provide substantive detail of other courses (including details of funding or attendance – either online or in person). 

There was also no evidence as to how her lifestyle was funded when she was in the UK; claims of employment were not supported by evidence of salary earned or taxes paid. While her accounts showed that she paid some utility bills, these were modest and not conclusive. Likewise, while she gave an address in Surrey, there was no evidence of any security of tenure. 

In contrast, the debtor had clear continuing ties to Bulgaria, both with family and in dealing with assets and property, which are significant given her lack of economic activity in England and Wales. Indeed, in March 2019, the debtor was appointed as sole manager of a private fund incorporated in Bulgaria by her father. On balance, the debtor’s habitual residence remained Bulgaria and there was no evidence of a genuine change of habitual residence to England and Wales.

This matter is a reminder that forum shopping is not encouraged by the courts, and that it can be appropriate to challenge the jurisdiction of the courts (or the adjudicator) to make a bankruptcy order.

Kooter v Official Receiver [2022] EWHC 2683 (Ch)
Also known as Radeva (In Bankruptcy), Re

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