Re Sherlock

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 07 April 1995
• Neutral Citation: 1995 WJSC-HC 3310
• Docket Number: BANKRUPTCY (NO. 2223)
• Court: High Court
• Date: 07 April 1995

SHERLOCK (A BANKRUPT)

IN THE MATTER OF GERARD SHERLOCK, A BANKRUPT

1995 WJSC-HC 3310

BANKRUPTCY (NO. 2223)

THE HIGH COURT

Synopsis:

BANKRUPTCY

Bankrupt

Adjudication - Validity - Challenge - Judgment - Judgment debt - Failure of bankruptcy summons to give bankrupt credit for one item - Act of bankruptcy based on incorrect amount of debt - Allowance of cause shown against bankruptcy - Bankruptcy Act, 1988, ss. 7, 8, 16 - (2223 B - Murphy J. - 7/4/95) [1995] 2 ILRM 493

|In re Sherlock|

Citations:

O MAOILEOIN V OFFICIAL ASSIGNEE 1989 IR 647

BANKRUPTCY ACT 1988

COLLIER, IN RE 1891 64 LT 742

A DEBTOR, IN RE 1908 2 KB 684

BANKRUPTCY ACT 1883 S143(1)

BANKRUPTCY (IRL) (AMDT) ACT 1872 S21

BANKRUPTCY ACT 1883 S143

1 Judgment of Mr. Justice Francis D. Murphy delivered the 7th day of April, 1995.

2 By an Order of the High Court dated the 12th of December, 1994, the above named Gerard Sherlock was adjudicated bankrupt. The petition for bankruptcy is dated the 26th day of October, 1994 and was presented on the 7th of November, 1994. The act of bankruptcy relied upon in the petition was that the creditor, Lombard and Ulster Banking Limited, had caused a bankruptcy summons to be issued from the High Court addressed to the said Gerard Sherlock on the 27th day of June, 1994 demanding payment of the sum of £182,669.73 (being as to £167,506.92 for principal and £15,162.81 for interest to the 5th May, 1994) and that the same had not been paid, secured or compounded. The notice requiring payment prior to the issue of the bankruptcy summons was dated the 22nd of December, 1993 and claimed the same principal sum of £167,506.92 with interest up to the 1st of December, 1993 of £9,472.17 making a total of £176,979.09 as of the 22nd of December, 1993.

3 The bankrupt has sought to show cause on a number of grounds which included the contention that the notice aforesaid requiring payment and that the bankruptcy summons already referred to claimed inaccurate and excessive amounts as against the bankrupt.

4 On behalf of the bankrupt, it was argued that if it could be shown that the sums claimed in the demand and in the bankruptcy summons were inaccurate that then the failure to pay the sums so demanded could not and did not amount to an act of bankruptcy and accordingly that there was no such act on which to ground a valid Order of adjudication. In my view that argument is correct in principle.

5 The manner in which the claim of the creditor was computed is as follows:-

6 By an Order made on consent in proceedings entitled, Lombard and Ulster Banking Limited, Plaintiff and Kieran Sherlock, William Sherlock, Gerard Sherlock and Mary Sherlock, Defendants, Record No. 1992 No. 512, it was ordered that the plaintiffs in those proceedings should recover as against the defendants therein, the sum of £167,506.92 and the costs of those proceedings when taxed and ascertained. In addition it was provided by the said Order that the Insurance Corporation of Ireland Limited (therein identified as "the Garnishee") should forthwith pay to the plaintiffs in those proceedings the sum of £60,154 less the sum due to it for its costs of the Garnishee proceedings when taxed and ascertained. That judgment established clearly that the principal amount due as of the 19th of March, 1993 amounted to the said sum of £167,506.92. It was never suggested that this amount fell to be reduced by the sum required to be paid by the Garnishee to the plaintiffs in those proceedings. However, it emerged in correspondence between the Solicitors on behalf of the Applicant herein and the Solicitors on behalf of the petitioning creditors that, in addition to paying the principal amount due by it (which after the deduction of costs amounted to £59,337.25) the Garnishee also paid to the plaintiffs a sum of £2,711.68 which was the sum calculated in respect of interest from the 11th of January, 1993, the date in which the Insurance Corporation of Ireland was informed of the making of the conditional Order of Garnishee, until the 5th of May, 1993, when the Third Parties costs were agreed and deducted. Whilst it seems that this payment in respect of interest was not foreseen by the consent Order of the 19th of March, 1993, it is clear that the...