The Representation of G. Santer and J. Santer (Née Werrin)

CourtRoyal Court
JudgeHamon, Deputy Bailiff:
Judgment Date26 June 1996
Date26 June 1996
Hamon, Deputy Bailiff:

R.J.F. Pirie for the representors;

C.M.B. Thacker for the respondent.

Cases cited:

(1) Barker, In re, 1985-86 JLR 186; further proceedings, 1987-88 JLR 4, considered.

(2) De Gruchy, In re, Royal Ct., August 30th, 1873, unreported; Le Gros, Droit Coutumier de Jersey, at 374.

(3) Le Maistre v. du Feu, Royal Ct., June 22nd, 1850, unreported; Le Gros, Droit Coutumier de Jersey, at 373, followed.

(4) Les Catieaux Properties Ltd., In re, Royal Ct., October 4th, 1991, unreported, considered.

(5) Perkins v. States of Guernsey Housing Auth. (President), Guernsey Court of Appeal, August 2nd, 1995, unreported, considered.

(6) Telefitters (C.I.) Ltd. v. Young, 1993 JLR N-2, considered.

(7) West Park Pavilion (1969) Ltd., In re, Royal Ct., March 19th, 1993, unreported; further proceedings, Royal Ct., January 21st, 1994, unreported, considered.

Legislation construed:

Bankruptcy (Dsastre) (Jersey) Law 1990, art. 1(6):

"Subject to Article 10, the provisions of this Law shall be in addition to and not in derogation of

(a) the 'Loi (1832) sur les dcrets';

(b) the 'Loi (1839) sur les remises de biens';

(c) those provisions of the 'Loi (1880) sur la proprit foncire' which relate to bankruptcy;

(d) the 'Loi (1904) (Amendement No. 2) sur la proprit foncire'; and

(e) any other law relating to bankruptcy,

except in so far as the provisions contained therein are inconsistent with the provisions of this Law."

art. 5(1): The relevant terms of this paragraph are set out at page 239, lines 19-21.

art. 10: "With effect from the date of the declaration no creditor to whom the debtor is indebted in respect of any debt provable in the 'dsastre' shall have any remedy against the property or person of the debtor in respect of the debt or shall commence any action or legal proceedings to recover the debt."

Texts cited:

Goodhart, Essays in Jurisprudence and the Common Law, Determining the ratio decidendi of a case, 1 (1931).

Le Gros, Droit Coutumier de Jersey, at 373-374 (1943).

Bankruptcydsastrecourt's power to orderby Bankruptcy (Dsastre) (Jersey) Law 1990, art. 5(1), court may not order dsastre of company following failure of remise de biens, since operates as immediate cession of property

The representors sought to declare their company en dsastre.

The representors owned a company, S Ltd., which was indebted to the respondent. Two charges in favour of the respondent were guaranteed by the representors by judicial hypothecs against their own private property and a third over the property of S Ltd. Following the failure by S Ltd. to pay the instalments of interest as they fell due, the representors and S Ltd. were granted a remise de biens; however, this was subsequently discharged following a finding by the Royal Court (Le Cras, Lieutenant Bailiff) that the interest on the debts was guaranteed by same hypothecs which covered the principal debts: accordingly there proved to be insufficient money left over to pay anything to the representors' other, unsecured creditors and the remise was therefore unsustainable. These proceedings are reported at 1996 JLR 117.

The representors then made the present representation for S Ltd. to be declared en dsastre, while the respondent made a representation for a dgrvement and ralisation to take place in respect of the property of the representors and of S Ltd. The respondent submitted that (a) the failure of the remise de biens resulted in an immediate cession of the property of the representors and S Ltd. and it was therefore entitled to an order that a dgrvement and ralisation take place; furthermore (b) by art. 5(1)(b) of the Bankruptcy (Dsastre) (Jersey) Law 1990, "the court shall refuse to make a declaration [en dsastre] ... if the debtor has been permitted to make general cession ... of his property," which the representors now had by operation of law and in any case to order a dsastre would fail to give to the respondent the priority over the respondents' other creditors to which the guarantees entitled it.

The representors submitted that (a) although the failure of the remise entitled them to seek to make cession, it did not operate automatically as a renonciation of their property and until they chose to do so, the respondent was not entitled to a dgrvement order; and (b) it would be wrong to order a dgrvement rather than a dsastre because it would allow a respondent to obtain the representors' own property under their guarantees as well as the property of S Ltd., whereas its claims could be properly satisfied under a dsastre, allowing the respondent to pursue S Ltd.'s property but not their own.

Held, making the following order:

The court was precluded from making a dclaration en dsastre in respect of S Ltd. because by art. 5(1) of the 1990 Law, it was deemed to have "been permitted to make general cession" of its property. This was the case because the failure of the remises de biens in respect of...

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3 cases
  • Ostroumoff (Née Martland)
    • Jersey
    • Royal Court
    • 14 Septiembre 1999
    ...St. Helier (Constable) v. Baal, 1965 J.J. 503. (13) Super Seconds Ltd., In re, 1996 JLR 117; further proceedings, sub nom. Santer, In re, 1996 JLR 233; on appeal, sub nom. Super Seconds Ltd. v. Sparta Invs. Ltd., 1997 JLR 112. (14) Woolwich Bldg. Socy. v. Brown, [1996] CLC 625. Additional c......
  • Super Seconds Ltd, G. Santer and J. Santer (Née Werrin) v Sparta Investments Ltd
    • Jersey
    • Court of Appeal
    • 11 Abril 1997
    ...come into effect on the failure of the remise, the Royal Court (Hamon, Deputy Bailiff) ordered a dgrvement (in proceedings reported at 1996 JLR 233). On appeal, the appellants submitted that the Royal Court had been wrong to allow the dgrvement to proceed, because (a) a dsastre was not prec......
  • The Representation of Caroline Elizabeth Powell Nee Chambers and And The Loi (1839) Sur Les Remises De Biens
    • Jersey
    • Royal Court
    • 16 Febrero 2018
    ...debtor's assets into the hands of the Court being deemed a voluntary cession. Re Barker 1987–88 JLR 23; Re the Representation of Santer 1996 JLR 233“ 21 The position was authoritively explained by the Court of Appeal in the case of Super Seconds Limited v Sparta [1997] JLR 112. Having set o......

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