Birbeck v Midland Bank Ltd

JurisdictionJersey
CourtCourt of Appeal
Judge(Hoffmann, Le Quesne and Davies, JJ.A.):
Judgment Date07 October 1981
Date07 October 1981
COURT OF APPEAL
(Hoffmann, Le Quesne and Davies, JJ.A.):

P.R. Le Cras for the appellant;

M.H. Clapham for the respondent.

Bankruptcydgrvementrefusal to become tenantby Loi (1880) sur la proprit foncire, art. 94, creditor's failure to appear or refusal to become tenant aprs dgrvement destroys hypothque judiciaire on which creditor could have claimedunderlying debts remain to be pursued against other property of debtor

HOFFMANN,J.A.: In 1979, Mr. Terence Victor Birbeck owed substantial sums to creditors in Jersey. Several had obtained judgments against him. We are concerned with three of his judgment creditors who are the respondents to these appeals.

First, on the 27th August, 1976, Cleveland Garages obtained judgment for 65,717.51.

Second, on the 23rd January, 1978, the New Guarantee Trust Finance Limited obtained a judgment in the sum of 54,799.02. On the 6th April, 1979, this judgment was registered in the Public Registry thereby conferring upon the judgment creditor a judicial hypothec pursuant to Article 13 of the "Loi (1880) sur la Proprit Foncire", which I will call the law of 1880.

Third, the Midland Bank Limited were owed 60,000 and 14,000 on two promissory notes which had been acknowledged before the Royal Court and registered in the Public Registry so as to create judicial hypothecs on the 10th February, 1976, and the 24th February, 1978, respectively. In addition, the Midland Bank was owed substantial further sums and on the 6th June, 1980, recovered a judgment in the Royal Court for 125,654, which included what was owing on the two promissory notes and interest.

Mr. Birbeck paid Cleveland Garages Limited 53,941.67 out of their judgment debt, leaving them owed 11,775.84. The other he did not pay at all. He departed from the Island leaving his creditors to do their worst. The assets which he left within the Island comprised four parcels of land but, so far as we have been told, nothing else.

The creditors obtained an order adjudging Mr. Birbeck's real and personal property renounced and pursuant to Article 2 of the "Loi (1904) (Amendment No. 2) sur la Proprit Foncire" (the 1904 law), the appointment of an attorney to conduct a "dgrvement" of the realty and a "ralisation" of the personalty. We were told that nothing was done about the "ralisation", presumably because there was no personalty within the Island to realise. The attorney then proceeded to conduct a "dgrvement" in respect of each of the four parcels of land. Notice was given pursuant to Article 92 of the Law of 1880 and a list of creditors prepared by the attorney for each of the four parcels. The New Guarantee Trust Finance Limited and the Midland Bank Limited, having judicial hypothecs registered in the Public Registry, were automatically entered in each list and summoned to the "dgrvement". Cleveland Garages Limited, although entitled pursuant to Article 92 to have its claim as an unsecured creditor inserted in the list, did not do so and took no part in the "dgrvements".

At the "dgrvements", the only creditor willing to declare itself tenant of the four properties was the Midland Bank Trust Corporation (Jersey) Limited, which was entitled to the senior judicial hypothec dated the 24th May, 1974, in respect of a promissory note for 75,000. The other creditors, having presumably decided that there was no equity in the properties for them, refused or did not appear. As a result, all four properties were vested in the Midland Bank Trust Corporation (Jersey) Limited. The others got nothing.

The unpaid creditors were not satisfied with this state of affairs. They suspected that Mr. Birbeck had assets outside the Island and were determined to do what they could to make him yield them up. In April, 1980, they learned that Mr. Birbeck had returned to the Island. The three respondents applied to have him arrested as a debtor, relying upon their unsatisfied judgment debts. Mr. Birbeck applied to set aside the order for his arrest at the instance of New Guarantee Trust Finance Limited on the ground that by virtue of Article 94 of the Law of 1880, the judgment debt had become null and void. The Deputy Bailiff did not accept this...

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7 cases
  • Le Monnier v Attorney General
    • Jersey
    • Royal Court
    • 26 April 1989
    ...Guar. Trust Fin. Ltd. v. Birbeck, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, considered. (3) Nicholson v. Brown, [1974] RTR 177; [1974] Crim. L.R. 187; (1974), 118 Sol. Jo. 259, considered. (4) R. v. Steel (1968), 52 C......
  • The Representation of Thompson, Amy (Née Remon), Whorrall (Née Remon) and Remon
    • Jersey
    • Royal Court
    • 15 May 1989
    ...1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, applied. (9) Overseas Ins. Brokers Ltd., Re, 1963 J.J. 325; further proceedings, 1966 J.J. 547. (10) R. v. City of London Court (Judge), [1......
  • The Dégrèvement of The Immoveable Property of Barker
    • Jersey
    • Royal Court
    • 29 July 1985
  • Fort Regent Development Committee v Regency Suite Discotheque and Restaurant Ltd
    • Jersey
    • Royal Court
    • 23 October 1990
    ...1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; affirmed, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, considered. (5) Warner (ne Rimeur) v. Hendrick, 1985-86 JLR 366. Additional case cited by counsel: Pirouet v. Pirouet, 1985-86 JLR 151. Text......
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