THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS v. BODYCHELL RECYCLING LIMITED

1.2 When the case called on 15 August 2011 the Petitioners were represented by Mr Gibb, solicitor. Mr Milne appeared as a party litigant. Mr Milne had, by that time, lodged answers but no record had been made up. I allowed a brief adjournment to allow Mr Gibb to have a record prepared and lodged.

2.1 Mr Gibb relied on the ground set out in section 122(1)(f) of the 1985 Act, namely that the Company was unable to pay its debts. To be able to succeed on that ground he had to establish one or other of the matters set out in section 123 of the Act. He founded upon Section 123(1)(e) in terms of which a company is deemed to be unable to pay its debts if it is proved to the satisfaction of the court that it is unable to pay its debts as they fall due.

2.4 In anticipation of Mr Milne's submissions Mr Gibb made the following points.

2.4.1 The value of the Company's assets was irrelevant. In the case of Cornhill Insurance PLC v Improvement Services Ltd [1986] WLR 114 the continuation of an interim injunction taken out by Cornhill Insurance PLC (a well known insurance company with a substantial business) to stop the defendants presenting a winding-up petition in respect of a debt of �1,154 was refused.

2.4.2 There was no indication as to when a debt said to be due to the Company by a debtor would be paid. That matter had been canvassed in the Answers originally lodged on behalf of the Company in response to the Petition. Some considerable time had now elapsed and payment of that debt to the Company had still not materialised .