An appeal by trustees in bankruptcy against an order for sale of a property be postponed until the respondent’s disabled adult daughter no longer lived at the property
FACTS
- Mr. & Mrs Baker were the first and second respondents respectively to a claim brought by Mr. Baker’s trustees in bankruptcy.
- Mr. Baker’s trustees in bankruptcy bought a claim under s283A of the Insolvency Act 1986 against his family property, in which he had a 50% beneficial interest.
- Mr. & Mrs Baker lived at the property with their 30 year old adult daughter. The daughter suffered from: Global Developmental Delay; Dyspraxia and OCD. She was described as having the mental age of an 8/9 year old. She was unable to live independently and had mobility difficulties.
- DJ Foss gave directions for sale of the property with vacant possession, but postponed the sale until such a time as the daughter was no longer living at the property. No longstop date was provided for.
- The trustees in bankruptcy appealed. They challenged whether DJ Foss was right to find the circumstances in this case as exceptional for the purposes of s335A(3) Insolvency Act and whether the judge had erred in the exercise of her discretion.
HELD
- Henderson J held that DJ Foss had been right to find that the circumstances of this case were exceptional [39].
- DJ Foss had erred in the exercise of her discretion [51]: the issue of sale of the property within a reasonable time limit had to be dealt with: ‘…since there is no evidence that [the daughter’s] condition is likely to improve, her interests do not require a postponement for longer than it will take to find suitable alternative accommodation and plan the move in a way which will cause her the least distress’ [50].
- The longest postponement that could be permitted to sale was 12 months, until July 2017.
