Bernhards Sport Surfaces Ltd v Astrosoccer 4 U Ltd

Citation: [2017] EWHC 2425 (TCC)

The Clamaint (Bernhards) applied to enforce an adjudication decision against the Defendant (Astrosoccer).  The adjudication concerned sums due pursuant to a payment notice, against which no pay less notice had been given.

21 days before the enforcement hearing, the Defendant’s solicitors issued an ultimatum to the Claimant’s solicitors to mediate, failing which the Defendant would enter insolvency prior to the enforcement hearing.  Further correspondence ensued from the defendant’s solicitors, which the Court described as “breathtakingly rude”, “threats” and “plainly, part of the intention to misuse the Insolvency proceedings”.

18 days before the enforcement hearing, the defendant issued in draft a notice of intention to appoint and administrator (NOI).

7 days before the enforcement hearing, the defendant issued and filed a NOI with the Companies Court.

This imposed a moratorium on the continuation of the enforcement proceedings, unless the Claimant obtained the court’s permission.  The Claimant applied under rule 43(6)(b) of the Insolvency Act 1986, to be heard concurrently with the enforcement application.

Shortly prior to the hearing, the defendant entered into a number of transactions regarding the structure, assets and interests of the defendant company.

The court was satisfied that the service of the NOI was “entirely bogus” was simply an attempt to avoid payment of the adjudicator’s decision. The Court granted the Claimant’s application for permission to continue.  Having done so, the court also granted the Claimant summary judgment to enforce the adjudicator’s decision because no pay less notice had been issued against the notified sum.

Tom Owen appeared for the Claimant.

Full Judgment

Counsel

Tom Owen

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