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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Sleight v The Crown Estate Commissioners  EWHC 3489 (Ch) (19 December 2018)
Cite as:  EWHC 3489 (Ch)
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BUSINESS AND PROPERTY COURTS IN LEEDS
COMPANIES AND INSOLVENCY LIST (Chd)
IN THE MATTER OF THE ESTATE OF JILLIAN PAULA MASCALL (Deceased)
AND IN THE MATTER OF THE ADMINISTRATION OF INSOLVENT ESTATES OF DECEASED PERSONS ORDER
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Leeds LS1 3GY
B e f o r e :
(SITTING AS A JUDGE OF THE CHANCERY DIVISION)
| JAMES SLEIGHT
(as trustee of the estate of
Jillian Paula Mascall deceased)
|- and -
|THE CROWN ESTATE COMMISSIONERS
The Respondent was not represented and did not attend
Hearing date: 13 December 2018
Crown Copyright ©
His Honour Judge Davis-White QC :
The Current application
"operates so as to determine, from the date of the disclaimer, the rights, interests and liabilities of the bankrupt and his estate in or in respect of the property disclaimed..."
"320 Court order vesting disclaimed property
(1) This section and the next apply where the trustee has disclaimed property under section 315.
(2) An application may be made to the court under this section by—(a) any person who claims an interest in the disclaimed property,(b) any person who is under any liability in respect of the disclaimed property, not being a liability discharged by the disclaimer, or(c) where the disclaimed property is property in a dwelling-house, any person who at the time when the [bankruptcy application was made or (as the case may be) the] bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.
(3) Subject as follows in this section and the next, the court may, on an application under this section, make an order on such terms as it thinks fit for the vesting of the disclaimed property in, or for its delivery to—(a) a person entitled to it or a trustee for such a person,(b) a person subject to such a liability as is mentioned in subsection (2)(b) or a trustee for such a person, or(c) where the disclaimed property is property in a dwelling-house, any person who at the time when the [bankruptcy application was made or (as the case may be) the] bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.
(6) The court shall not make an order by virtue of subsection (3)(b) except where it appears to the court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer.
(5) The effect of any order under this section shall be taken into account in assessing for the purposes of section 315(5) the extent of any loss or damage sustained by any person in consequence of the disclaimer.
(6) An order under this section vesting property in any person need not be completed by any conveyance, assignment or transfer.
Locus of the applicant
"Is he interested in the disclaimed property? Certainly not. He has parted with all his interest in it. His only interest in it is that unpleasant one of having a duty in respect of it. It seems to me that if he were to apply to the Court, it would be impossible that the Court would grant him possession of it."
Accordingly, there was a "revolting absurdity and shocking injustice" in that the tenant "would have to pay rent to the end of the term and yet have no enjoyment of the property" (see at page 468).
Vesting of what?
29.1 The Crown might create a new freehold title as seems to have occurred in Hunt v Withinshaw;
19.2 A chargee/mortgagee might apply for a vesting order as seems to have happened in Lee v Lee  BPIR 926 (as regards a leasehold) and LBC v Crown Estate Commissioners  BPIR 428 (as regards freehold property). This involves a "statutory recreation" (if necessary) see Hindcastle at page 89A;
19.3 The mortgagee might have relied upon its existing proprietary interest in the Properties and s315(3) Insolvency Act 1986 preserving its rights and interest as would be applicable if the freehold interest remained in being. This seems to be what happened in the Scmlla case.
I do not need to address in this judgment the efficacy of the third possibility and whether it is subject to any limits (see discussion in the Scmlla case at pages 808G-811A.).
Timing of application