Banque Arabe et Internationale d’Investissement SA v Morris & Ors [2001] 1 BCLC 263 - S 213 Insolvency Act 1986 (s 993 CA 2006 - s 9 FA).
1) there are 3 requirements to be fulfilled before a court would determine a preliminary point:
i) the point is formulated so that findings of fact do not need to be made,
ii) its determination would allow at least one area of dispute to be decided,
iii) the point raises a reasonably arguable issue.
2) not reasonably arguable that to be a party to a business carrying out fraudulent trading a person must exercise a controlling or managerial function in that business.
- “party to” means participates in, takes part in, or concurs in; it involves some positive steps in the carrying on of the business in a fraudulent manner.
- just as an employee merely carrying out orders is not a “party” whereas somebody who orchestrates, organises or can seize of the business concerned is a party, so a company or other entity which carries on a bona fide business with the company, is not a “party” but a company which is involved in, and assists and benefits from, the offending business, is a party.
undefined: unpaid