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Transactions at an undervalue and defrauding creditors

Date: 9th June, 2008   |   Author: Caroline Stark   |   Comments: 4

The time limits within which transactions at an undervalue can be upset under sections 238 and 339 of the Insolvency Act 1986 are reasonably well understood: 2 years for companies and 5 years for individuals.

Section 423, which deals with transactions at an undervalue that were intended to defraud creditors, is less straightforward. It requires proof of intention - a much more difficult hurdle than simple proof of facts - to upset a transaction successfully. And although there is no statutory time limit, historically the courts were reluctant to extend its reach too far. The recent case Sands v Clitheroe [2006] BPIR 1000 revisits these issues and great care is now required to avoid falling foul of s423.

The facts in the Sands case were that Mr Clitheroe, a practicing solicitor, gifted his interest in his home to his wife. At the time he was solvent and a partner in a fairly secure practice, but he effected the transfer in order to protect the family home in the event of the financial collapse of the partnership. After being made bankrupt 15 years later, and despite all of his creditors being "new", the court upset the transaction.

The court decided that where the intent of the transaction had been to put assets beyond creditors' reach, even though the debtor was not engaging in "risky business" and none of the bankruptcy debts existed at the time, the transaction fell within Section 423, for which there is no time limit. Notably, Section 423 applies equally to companies as to individuals.

The case shows that if a transaction is for full value or the reasons for the transaction are other than to put assets beyond the reach of creditors, it will be safe from attack under Section 423, regardless of how long ago the transaction occurred. It is, therefore, imperative that the reasons for a transaction are fully documented rather than leaving a court to assume it was to avoid creditors. The case also highlights that, where there could be a dispute as to value, it would be wise to retain evidence of the basis of valuation well beyond the appropriate statute of limitations period.

 

Discussion and Comments

By david youde on Sunday 31st May, 2009

i am company creditor for £24,000 they sold the assets that were paid for with this money for £400 to a new company that they started.they done this so that the bailiffs could not repossess the tooling that was paid for by these assets.now they say they owe me nothing.is this legal?  regards dave.

By Chris Laughton on Wednesday 3rd June, 2009

Dave

A number of questions need answering to help identify what can be done in the situation you describe.

I can’t tell whether anyone has broken the law, but your situation does cry out for further investigation.  

Did you lend money to the company, which the company then used to buy assets, or did you supply the assets? If you did supply the assets were they subject to retention of title?  What would a third party who wanted them have paid for the assets at the time they were sold on for £400 (and how much would it have cost that third party to remove/relocate the assets)?  Was the sale to the new company transacted by the old company or by an Insolvency Practitioner?

Chris

By david youde on Wednesday 3rd June, 2009

chris

     i paid £24,000 for the assets myself.this money was then put into the company loan account.it is these assets that they have sold for £400 to a new company that they have opened up without notifying myself.

     dave

By Chris Laughton on Wednesday 10th June, 2009

David

Your £24,000 appears to be an unsecured loan.  Although the company may have used it to buy particular assets, which were then sold, in the absence of any form of security (which you do not mention so I assume it does not exist), you are simply an unsecured creditor.

As for selling assets that cost £24,000 for £400, the key question is what would someone genuinely have paid for those assets at the time they were sold? There may have been a transaction at an undervalue or an attempt to defraud creditors – but that will be a matter for investigation.  You need to take specific advice on whether to spend more money pursuing this.

Chris

 

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