Dismissed order for sale overturned

A judge was wrong to dismiss an application on the conclusion that the application should have been made under the CPR rather than the Insolvency Rules.

A deputy district judge had refused to make an order sought by Trustees in Bankruptcy for the sale of the bankrupt’s property, as he decided that the relevant application should have been made by Part 8 Claim Form under the CPR and not by Insolvency Act Application notice under the Insolvency (England and Wales) Rules 2016 (“the 2016 Rules”).  He had decided that he lacked jurisdiction to make the order sought.

On appeal it was held that:

  1. The trustees’ application for an order for sale could, and in fact should, be made under the 2016 Rules.
  2. Even if the application had been issued in the wrong form, it would not have deprived the judge of jurisdiction. He had the power under CPR 3.10 to correct any error of procedure.

It was also held that there were no exceptional circumstances to warrant the refusal of the application, and the court made an order for sale.

Hussain (A Bankrupt), Re [2021] EWHC 3276 (Ch)

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