| OUTER HOUSE, COURT OF SESSION [2008] CSOH 134 |
| CA18/08 | OPINION OF SIR DAVID EDWARD (Sitting as a Temporary Judge) in the cause KEITH VEITCH ANDERSON Pursuer; against PAUL ANTHONY DICKENS Defender: ________________ |
Pursuer: Delibegovic-Broome; MacRoberts
Defender: Macpherson, Solicitor Advocate; Brodies
10 September 2008
[1] Under section 243 of the Insolvency Act 1986 ("the 1986 Act"), which applies to Scotland only, the liquidator or a creditor of a company can challenge a transaction entered into by the company
"which has the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors, being a preference created not earlier than 6 months before the commencement of the winding up of the company".
Such a preference is commonly referred to as an unfair preference.
[2] As Bell explains (Commentaries, 7th edition, Vol. II, page 193), the law on unfair preferences is based on a notional distinction between public bankruptcy (in this case the commencement of winding up) and constructive bankruptcy which is deemed to have occurred at an earlier date (in this case six months earlier). Under section 243, a transaction is struck at as an unfair preference unless it can be brought within one of the exceptions set out in subsection (2). The first three are relevant here:
(a) transactions in the ordinary course of trade or business;
(b) payments in cash for debts due and payable, except where there is collusion,
(c) transactions involving reciprocal obligations (nova debita), except where there is collusion.
Except in so far as it is necessary to prove collusion, it is not necessary for the person challenging a transaction to prove the motive for it
[3] The pursuer is liquidator of New Alba (Redwood House) Limited. A special resolution for the voluntary winding up of that company was passed on 18 December 2006, and the pursuer was appointed liquidator on that date. 18 December 2006 is agreed to be the date of commencement of the company's winding up for the purposes of section 243 (1) of the Act.
[4] In this action the pursuer (hereafter "the liquidator") challenges as unfair preferences two transactions entered into by the company on 12 July and 24 August 2006 respectively and therefore within the period of 6 months of constructive bankruptcy. There is no doubt as to the occurrence of the transaction on 24 August 2006. It is less clear that a relevant transaction occurred on 12 July 2006.
[5] The defender is a chartered surveyor and experienced property developer. He was the sole director and shareholder of the company which was set up as a "single purpose vehicle" for the development of Redwood House, a villa in the Merchiston district of Edinburgh. At the material time he was also director and shareholder of a number of other companies, notably New Alba Limited, now renamed Ablawen Limited (New Alba spelt backwards). The names of some of his other companies included the words Alba or New Alba and some of them appear to have been single purpose vehicles for particular property developments.
Procedural Background
[6] The action was initially raised in name, first, of New Alba (Redwood House) Limited and, second, of the pursuer as liquidator of that company. As the company itself was neither a creditor nor the liquidator, it did not have title to raise an action under section 243(4). The Summons was amended on 28 February 2008 so as to leave the liquidator as sole pursuer. In what follows, including quotations from the pleadings, the earlier involvement of the company as first pursuer is ignored.
[7] The liquidator did not obtain sanction from the creditors or from the Court to raise the action. By a Petition presented on 9 June 2008 he sought the sanction of the Court to raise proceedings in terms of section 165 of the 1986 Act. By interlocutor of today's date, I have granted him the sanction sought with retrospective effect. I have issued a separate Opinion dealing with that matter.
[8] The action was transferred to the Commercial Court on 18 March 2008. There is therefore no Closed Record. As points have been raised in relation to the defender's averments and admissions at various stages of the proceedings, it will be necessary to refer to the Summons and the Defences in their various states since the action was raised.
[9] The pursuer's conclusions in relation to the transaction on 24 August 2006 are as follows:
1. For a declarator that on 24 August 2006 New Alba (Redwood House) Limited ("the company") created a preference in favour of the Defender by transfer of £270,750 into an account of the Defender's with Clydesdale Bank plc, Account Number 80100495, which preference prejudiced the general body of creditors under and in terms of section 243 of the Insolvency Act 1986.
2. For payment by the Defender to the Pursuer, as the liquidator of the Company, of the sum of [£270,750 with interest].
It will be seen that the transaction challenged is a payment by bank transfer by the company to the defender. The preference is said in the pleadings, though not in the conclusion, to have been a preference in favour of the defender as a creditor of the company.
[10] The conclusions in relation to the transaction on 12 July 2006 are as follows:
1. For a declarator that on 12 July 2006 the Company created a preference in favour of the Defender by reducing the sale price of the plot number 3 at Redwood House, Edinburgh, sold to Mr Laurie Dempster thereby reducing the Defender's cautionary obligation to Mr Dempster, which preference prejudiced the general body of creditors under and in terms of section 243 of the Insolvency Act 1986.
2. For payment by the Defender to the Pursuer, as the liquidator of the Company, of the sum of [£10,000 with interest].
Again, the conclusion proceeds on the hypothesis that the preference was a preference in favour of the defender himself, in this case expressly as cautioner.
[11] The pursuer now seeks
· Summary decree on the basis that the pleadings disclose no stateable defence, or
· Decree de plano on the basis that the defender's averments are irrelevant and/or are demonstrably unfounded in fact.
The defender seeks Proof before Answer on the ground that the issues between the parties cannot be resolved without ascertainment, or at least clarification, of the facts.
The Facts
[12] In this section I set out the facts so far as they can be gleaned from the pleadings and productions, most of which have been produced or compiled by the liquidator from the papers handed over to him. A number of these are copies of letters that bear to have been signed by the defender as "Managing Director" but without the letterhead or any other indication of the company on whose behalf he was writing.
[13] Three of the persons to whom such letters were sent were investors in the Redwood House project: Mr J. Goold, Mr Laurie Dempster and Ms Maureen Blyth. Ms Blyth was resident in Guernsey. She was advised by Mr S. Hay in Edinburgh. Her investment was made through a company, Ladon Properties Limited, but she was treated by the defender as being herself the investor.
[14] On 14 January 2005, the defender wrote to Mr Goold a letter (6/1) setting out the investment proposal. This is one of the copy letters which is signed "Paul Dickens, Managing Director" but has no letterhead indicating the name of the company:
"Residential Development - Redwood House, Edinburgh
New Alba Limited, in conjunction with the Clydesdale Bank plc, will provide approximately 90% of the purchase price of the site, professional fees, interest charges and any other costs associated with the development. We in turn are looking for Private Investors to provide 10% of the aforementioned costs associated with the development.
In return, the Private Investors will receive the development costs return (currently 26%) plus a 7.5% return on their entire investment ie initial return plus profits x 7.5%
e.g.
a) Initial Investment 100,000
b) Net return @26% 26,000
c) 7.5% bonus _ 9,225
Total return 135,225
The net return is guaranteed at 25% and it is envisaged the project will complete in Spring 2005.
New Alba (Redwood House) Limited is a "stand alone" company and I suggest holding a monthly meeting when the various payments to contractors and professionals will be approved and cheques should be signed by three members of the consortium comprising:
1. Malcolm Macpherson Non Executive Chairman
2. Kenneth Reid Project Manager/Architect
3. Paul Dickens Managing Director
Following these meetings a bi-monthly cost and marketing report will also be issued to the consortium members."
[15] On 28 January 2005 the defender wrote letters in identical terms to Mr Goold and Mr Dempster (6/2 and 6/3). Again, copies only are available, with no letterhead. They are signed "Paul Dickens, Managing Director":
"Redwood House Edinburgh
As you know we are moving along apace with the above development and are hoping to settle in the next few days. The Clydesdale Bank plc will be funding the project and they have asked that funds from Private Investors be in place prior to the actual date so that the transaction goes through on the day of settlement.
To this end I would be grateful if you would forward your investment of £50,000 to the Clydesdale Bank as noted below:
Clydesdale Bank plc
Account Name New Alba (Redwood House) Limited
Sort Code 82 62 33
Account number 500 398 55
I will of course keep you fully appraised of the progress by way of regular reports and correspondence and of course as soon as the marketing suite is completed will be in touch so that you may examine the proposals and plans first hand.
Finally, I would like to take this opportunity to thank you for your interest in the development and indeed in New Alba Limited."
[16] New Alba (Redwood House) Limited had two current accounts with the Clydesdale Bank, Morningside Road Branch, Edinburgh: the Development Loan Account (number 040093) and the Business Current Account (number 039855). The liquidator's summary of movements on the Business Current Account (annexed to 6/32 at page 5) shows that on 1 February 2005, £40,000 was received from Mr Dempster and £60,000 from Mr Goold.
[17] On 1 March 2005 the defender wrote a letter (7/3) to Mr Hay, acting for Ms Blyth. Again, only a copy is available, with no letterhead, signed "Paul Dickens, Managing Director. Under the heading "Return on Investment", the defender wrote:
"I have enclosed a copy of the development analysis for your information. You will see the return quoted as 25% and this is guaranteed. However if the return exceeds 25% the return will be increased accordingly. (No change if it falls below 25%) e.g. £260,000 - a 25% return on completion of the project would equate to a £65,000 dividend."
[18] On 14 March 2005 Mr Hay wrote a letter (7/4) to the defender whom he addressed as "P.Dickens Esq. Director New Alba Limited":
"Investment in Redwood House
I very much appreciated the tour of the property earlier today and I am sure this will be a very successful development. I have taken instructions from Maureen regarding the investment of £260,000 which she made to the company on Friday and I have enclosed a draft letter for your attention in this connection.
I should be grateful if you would have the letter prepared on the company headed paper, sign this as the Director and return to me. I will send this to Maureen and retain a copy for our file. If you would like to discuss any aspect of the letter with me, please let me know."
The draft letter referred to is not amongst the productions, but the liquidator's summary of movements on the Development Loan Account (annexed to 6/32 at page 10) shows that £260,000 was received from Maureen Blyth on 14 March 2005.
[19] On 17 March 2005 the defender wrote a letter to Ms Blyth (6/5, also 6/20 and 7/2) on paper headed "New Alba Limited" and signed "Paul Dickens, Managing Director, New Alba Limited":
"I acknowledge the investment made by Ladon Properties Limited in the sum of £260,000.
In relation to the investment return, as previously advised, this will be a guarantee (sic) sum of 25% equating to at least £65,000 on your investment. While your investment is unsecured, should the project fail to deliver the anticipated return, I can confirm that I will personally guarantee to meet any shortfall. I trust that you will find this to be acceptable.
....
In the meantime, I would like to thank you for the unsecured loan and look forward to you sharing in our success."
[20] By an exchange of letters dated 21 and 22 February and 7, 10 and 14 March 2006 (6/15 to 6/19) between solicitors acting respectively for New Alba (Redwood House) Limited (sellers) and Laurie Dempster and Ann Graham (purchasers), missives were concluded for the sale of Plot 3 Redwood House.
[21] The missives initially provided for a purchase price of £765,000 with the proviso that "Provided there is no delay in settlement by the Purchaser the Price shall be reduced by the sum of £10,000 as an investor's incentive". The price finally agreed was £775,000 subject to the same proviso with the insertion of the word "unreasonable" before "delay".
[22] By the summer of 2006 the Redwood House development was almost complete but considerably over time and over budget. According to the liquidator's table of plot sales (6/12), the sales of plots 1-6 were completed on various dates between 12 and 28 July and the sales of plots 7 and 8 on 21 August 2006.
[23] In particular, the liquidator's table shows the sale of plot 3 (the Dempster plot) as having been completed for a price of £775,000 on 12 July 2006 (less than six months before the date of winding up). The bank statement for the Development Loan Account, (6/24) shows a credit on 12 July 2006 of £733,217.12. This has been annotated (apparently by someone in the liquidator's office) as relating to plot 3. The liquidator's list of Nominal Activity on the Development Loan Account (6/32, page 11) also notes this credit as "Plot 3 - Funds Received".
[24] There is no explanation anywhere in the papers of the discrepancy between the agreed purchase price of £775,000 (less £10,000 "investor's incentive") and the sum of £733,217.12 paid on 12 July 2006. Whatever be the explanation, the "transaction" to which the third and fourth conclusions relate was an element or part of the transaction for the sale of plot 3 involving Mr Dempster. That transaction was completed on 12 July 2006.
[25] On 13 August 2006 an interim certificate was issued by GVA Grimley (a building consultancy) in favour of Hunter & Clark Limited who appear to have been the principal contractors for the Redwood House development. The sum certified as due within 28 days of the date of the certificate was £69,505. On the same day the certificate with an application for payment was sent to New Alba (Redwood House) Limited.
[26] Hunter & Clark also had an outstanding claim for extension of time and were seeking Architect's Instructions for additional works. On 18 August 2006 Mr Allan Gilmour of Hunter & Clark sent an email to Mr Iain Hogarth of Messrs Faithful and Gould, the contract surveyors, in which he said, with some prescience as it turned out:
"Being aware of our Clients financial position on this Contract my primary concern for some time now has been to see the removal of the contentious valuation items before Practical Completion but, for some reason, this has not transpired and we are now in the situation I was trying to avoid; having completed the contract and having a backlog of disputed valuation issues; the danger being that, now having sold all the properties, the Client decides to liquidate the Company and we are left high and dry. Unfortunately this has happened to us in the past so I'm now very nervous when this situation is allowed to occur as I'm sure you will understand."
[27] On 22 and 24 August 2006 respectively, the two outstanding payments for plots 7 and 8 were paid into the Development Loan Account. At the debate before me, the solicitor-advocate for the defender accepted that, once these payments had been received, New Alba (Redwood House) Limited had no further cash to come in, other than small amounts which the liquidator has recovered.
[28] On 24 August 2006, after the payment-in for plot 8, the sum of £270,750 was transferred from the Development Loan Account to account number 80100495, also with the Clydesdale Bank. This was an account in name of "Mr P A Dickens and Mrs K R Dickens" (hereafter "the Dickens Personal Account"). That transfer is the transaction to which the first and second conclusions relate.
[29] Following that transaction, the sum standing at credit of the Development Loan Account as at 25 August 2006 was £1917.52 and the sum standing at credit of the Business Current Account was £1.29. After payment of Bank interest charges for the period to 31 August 2006, there were no funds in either account. It appears therefore that, following the transfer of £270,750 to the Dickens Personal Account, and in the absence of any injection of new funds, New Alba (Redwood House) Limited was insolvent. This must have been known to the defender.
[30] Nothing daunted, on 24 August 2006 the defender also wrote a letter (6/22/39) to Hunter & Clark on paper headed "New Alba Ltd":
"New Alba (Redwood House) Ltd - Spylaw Road, Edinburgh
We write in relation to the above project and the Contract entered into between New Alba (Redwood House) Ltd and Hunter & Clark Ltd dated 1st September 2005. ...
Under Clause 24.2 of above mentioned Contract we formally give notice to Hunter & Clark Ltd of New Alba (Redwood House) Ltd's intention to deduct liquidated and ascertained damages from monies due under Clause 30.1.1.1. As per Clause 30.1.1.4 New Alba (Redwood House) Ltd proposes to withhold £48,576.36 from the Interim Certificate Number 14 value of £69.505.00 for liquidated and ascertained damages. ..."
[31] There followed a tense exchange of correspondence between Hunter & Clark and the defender (writing or addressed as managing director of New Alba Limited or of "Alba Residential"). The last letter of the exchange dated 15 November 2006 (6/22/53) from Hunter & Clark bears to record an assurance given by the defender at a meeting on 13 November 2006 that "you have now applied for a re-financing arrangement to try and honour your commitment to Hunter & Clark and our sub-contractors on the above Development".
[32] On 28 August a cheque (23) was drawn on the Dickens Personal Account in favour of Mr Dempster for £40,000 and the statement of that account (6/9) shows that sum as having been debited on 4 September 2006. A cheque (23/1) was drawn on 7 September in favour of Mr Goold for £75,000, debited from the account on 11 September 2006. The bank statement shows that on 8 September 2006 the sum of £294,000 was debited, and this is noted as being a payment to Ms Blyth. A further payment to Ms Blyth of £31,000 was debited on 5 January 2007 to an account with the Royal Bank of Scotland in name of "Paul Dickens trading as Alba Central Properties".
[33] At the debate before me the solicitor-advocate for the defender summarised the payments made to the investors as follows:
Ms Blyth £260,000 (original investment) + £65,000 (25% return) = £325,000
Mr Goold £60,000 (original investment) + £15,000 (25% return) = £75,000
Mr Dempster £40,000 (original investment) + £10,000 (25% return) = £50,000
All these payments are vouched as having been made from bank accounts controlled by the defender with the exception of the sum of £10,000 representing Mr Dempster's 25% return on his investment.
[34] According to the solicitor-advocate for the defender, the figures show that a total of £440,000 was paid to the investors, of which only £275,000 came from the funds of New Alba (Redwood House) Limited. Mr Dickens was therefore, he said, a creditor of that company for the balance of £169,250.
[35] The Report prepared by the liquidator for presentation to the first meeting of creditors on 18 December 2006 (6/13) narrated that the defender, as director of New Alba (Redwood House) Limited had resolved on 1 December 2006 that the company should be placed in liquidation as a matter of urgency. The passage headed "Company History" narrates that "The company commenced trading on 1 February 2005 with the purchase of Redwood House". The reason for the company's insolvency was explained as follows:
"The project ran an estimated £600,000 over budget and was finally completed seven months late. The Director advises this was largely due to the architects design which meant the tender was put out without sufficient information to allow accurate bids. The project ran considerably over budget due to deficiencies in the original specification. The director maintains that if the project had been costed correctly at the design stage the cost overruns would have been avoided. The director considers that the company has a substantial claim against the design team for the delay and cost incurred in completing the project. The company has not been in a position to pursue a claim due to a lack of funding. The director attributes the company's insolvency to the losses incurred on the Redwood House project and a lack of working capital to enable the company to take on other development projects."
[36] According to the Statement of Affairs prepared by the defender as director (6/13/4 and 6/13/5), ordinary creditors were estimated at £394,815, including the following:
Maureen Blyth £31,000
Paul Dickens £128,249
Hunter & Clark £21,450
New Alba Limited £91,083
[37] According to the liquidator's estimated statement of affairs as at 4 September 2007 (6/14 and 6/14/1), ordinary creditors were estimated at £828,275, including the following:
Paul Dickens £174,250
Hunter & Clark £558,363
New Alba Limited £18,000
[38] On 9 May 2007, in response to a letter from the liquidator which is not produced, the defender, writing from his home address, wrote a letter (6/31) to the liquidator including the following statements in the second and third paragraphs (emphasis added):
"I fully respect and understand your duties as appointed Liquidator for the above company [New Alba (Redwood House) Limited], and hopefully I can clear up the issues raised in your letter. The money you refer to of £270,750 was my personal money from the sale of some property and transferred into that account to enable me to pay the Private Investors back.
All the investors have been paid in full from a mixture of Redwood sales and my own money; you will also see from the attachment of all the correspondence sent to investors for their records. The final property at Redwood was sold in July and we, at that time, were not aware of the potentially huge claim the contractors were going to put in, (some 800k over and above what they had already been paid). When the investors were repaid, there were no significant outstanding creditors or bills."
[39] On 16 May 2007 the liquidator replied (6/32):
"I am having a little difficulty confirming the statement made in paragraph 2 of your letter. I enclose for your information an extract of the company's accounting records. I can find no trace of the sum of £270,750 being paid by you to the company to enable the private investors to be paid back. My review of the company's accounting records indicates that following receipt of the proceeds from the sale of plot 8 on 24 August 2006, the company paid £270,750 to you. I note that you advise that you used those funds to repay private investors.
I am also having a little difficulty reconciling your statement that at the time the investors were repaid 'there were no significant outstanding creditors or bills'. I enclose for your information an aged creditors analysis extracted from the company's accounting records. You will note that if you exclude [certain debts], there were outstanding debts of £52,819."
[40] The defender's reply (6/6) was an email dated 22 May 2007 from himself as managing director of Alba Residential (emphasis added):
"The private investors were all guaranteed a 25% return on their investments which were as follows
1. 270,000.00 M Blyth
2. 40,000.00 L Dempster
3. 60,000.00 J Goold
A total of 370,000 plus a 25% return meaning £462,500 in total was to be returned.
This was done as per my letter; a mixture of the last sale in Redwood and from my own private money for the sale of a property portfolio .... The investors were repaid by the Redwood sale of the £270,500 (sic) as well as me making up the difference with my own money of £192,500.00. The £270,750.00 transferred to my account to enable me to forward the money on to the investors. This totalling £462,500.00.
I have attached the cheque stubs for J Goold and L Dempster for your attention. M Blyth's money was sent direct to her bank account, J Goods (sic) was paid into his account at Adam & Co. On no account was the 270,500.00 (sic) paid into my account, used by me, not a penny.
Turning to the outstanding creditors at the time, I was truly unaware of their status, and the only time we become aware of the seriousness of the 'potential debt' was when the contractor intimated a claim in the region of an additional 700k. Rightly or wrongly, my view was that the investors had lent me money to take part in the development, and I paid them back as soon as I could."
[41] By letter dated 30 May 2007 (6/29 and 7/1) the liquidator sought further clarification (emphasis added):
"... I note that in relation to the loan from Maureen Blyth you personally guaranteed repayment. I should be obliged if you would confirm that this was also the case in relation to the loans from L Dempster and J Goold.
I should also be obliged if you would clarify the sums received by the company and repaid to the private investors. The company's records indicate that a loan of £260,000 was received from Maureen Blyth and not £270,000 as indicated in your email of 22 May. With the return of 25% the amount repaid to her would amount to £325,000 which is supported by the payments detailed in the bank statements which you forwarded. I note the loan from Laurie Dempster is £40,000. The copy bank statement you have forwarded indicates that this sum was repaid to him from your personal bank account on 4 September 2006. Can you confirm therefore that he did not receive any payment of interest. In total, therefore, it appears to me that taking into account the sum of £75,000 repaid to John Goold on 11 September 2006 a total of £440,000 has been repaid to private investors and not £462,500 as set out in your email of 22 May."
[42] The defender (again writing as managing director of Alba Residential) replied by email (6/7) on 5 June 2006 (emphasis added):
"You are indeed correct in your assumptions and accounting .
I will try and answer them point by point.
1. Yes, all investors were guaranteed 25% return. They were sent out an identical letter as per the one in your possession, only with changes of names and address.
2. You are indeed correct Maureen Blyth invested 260k not 270k as per my E mail of 22nd May 2007. This was an error on my behalf.
3. Laurie Dempster purchased plot 7 (sic) at Redwood House, and therefore his return was 10k. This was knocked off the purchase price from the unit he bought.
4. Therefore a total of £450,000 was paid out. £440,000 via cheques and bank transfers and £10,000.00 discount to Laurie's discount on plot 7 (sic) at Redwood House."
The Pleadings as to Matters of Fact
[43] The liquidator founded on material alterations in the defender's pleadings as to matters of fact. These relate, first, to the question whether the defender guaranteed the loans by Mr Goold, Mr Dempster and Ms Blyth, and second, to the reason why the sum of £270,750 was transferred to the defender's personal bank account on 24 August 2006.
[44] As regards the provision of guarantees, the liquidator averred in his Summons (and continues to aver) as follows:
"Cond. 3 .... In or about January 2005 the Defender approached Mr James Goold, Mr Laurie Dempster and Ms Maureen Blyth, asking them to invest in the Company. Letters dated 14 January 2005 to Mr Goold and 28 January 2005 to Mr Goold and Mr Dempster by the Defender are produced and incorporated herein for the sake of brevity. Identical letters were sent to Mr Goold, Mr Dempster and Ms Blyth, save as to name, address and amount.
Cond. 4 narrates the loans made by Mr Goold, Mr Dempster and Ladon Properties Limited.]
Cond. 5 The investors made the loans to [New Alba (Redwood House) Limited] on the basis of the Defender's guarantee that they would each receive a 25% return on their loans (which he referred to as "investment"). In his letter dated 17 March 2005 to each of the investors, the Defender said: "While your investment is unsecured, should the project fail to deliver the anticipated return, I can confirm that I will personally guarantee to meet any shortfall". The letter to Ms Blyth dated 17 March 2005 is produced and incorporated herein for the sake of brevity. Identical letters were sent to Mr Goold and Mr Dempster, save as to name, address and amount."
[45] These averments were initially answered by the defender as follows (emphasis added):
"Ans. 3 .... Admitted that in or around January 2005 the defender approached Mr Goold, Mr Dempster and Ms Blyth, asking them to invest in the [company]. Admitted that identical letters were sent to Mr Goold, Mr Dempster and Ms Blyth, save as to name, address and amount. The letters dated 14 and 28 January 2005 are referred to for their terms, beyond which no admission is made ...
Ans. 5 Admitted that the investors made the loans to the [company] on the basis of the defender's guarantee that they would each receive a 25% return on their loans. The letter dated 17 March 2005 is referred to for its terms, beyond which no admission is made. Quoad ultra denied."
[46] The admissions in Answer 5 were withdrawn by adjustments dated 25 February 2008, and those in Answer 3 by adjustments dated 22 May 2008. In response the liquidator drew attention to the defender's emails dated 22 May and 5 June 2007 (quoted above paragraphs 40 and 42). The answers now read (emphasis added):
"Ans. 3 ... Admitted that in or around January 2005 the Defender, as Managing Director of the Company, approached Mr Goold and Mr Dempster, asking them to invest in the Company. Admitted that letters dated 14 January 2005 to Mr Goold and 28 January 2005 to Mr Goold and Mr Dempster were sent by the Defender as Managing Director of the Company. Admitted that the letters sent to Mr Goold and Mr Dempster dated 28 January 2005 were identical, save as to name, address and amount. The letters dated 14 and 28 January 2005 are referred to for their terms, beyond which no admission is made. Quoad ultra denied. Explained and averred that the Defender, as Managing Director of the Company, approached Ms Maureen Blyth, through her agent Stephen Hay, in March 2005.
Ans. 5 Admitted that the Company gave no security to the investors in return for the making of the abovementioned loans. Admitted that the investors made the loans to the Company on the basis of the guarantee (by the Company) that they would each receive a 25% return on their loans. The letter from the Defender to Ms Blyth dated 17 March 2005 is referred to for its terms, beyond which no admission is made. Quoad ultra denied. Explained and averred that the Defender did not at any time provide a personal guarantee to Mr Goold or Mr Dempster in connection with the loans made by them to the Company. The Defender's emails to the Pursuer dated 22 May 2007 and 5 July 2007 are referred to for their terms beyond which no admission is made. Letters identical to the one sent to Ms Blyth dated 17 March 2005 (save as to name, address and amount) were not sent to Mr Goold and Mr Dempster. With reference to the letter from the Company to Maureen Blyth the Defender only personally guaranteed 'any shortfall' from the "anticipated return". The anticipated return was £65,000. The Defender has paid that sum to Maureen Blyth. ..."
[47] As regards the transfer of £270,750 on 24 August 2006, the defender's initial position in his Defences was that this was "for the purpose of the defender, as agent of the company, making payment of funds to creditors of the company by electronic transfer". This explanation was amplified in adjustments dated 25 February 2008 as follows:
"The transfer was necessary to enable the partial repayment to be made by electronic transfer. The [company was] unable to make an electronic transfer from [its] own account but that facility was available for transfers from the Clydesdale account."
[48] The explanation given in the latest adjustments dated 22 May 2008 is as follows:
"The Company transferred £270,750 to the Clydesdale Account for the purpose of the Defender, as their agent, making partial repayment of the sums due and payable to the investors as creditors of the Company. The transfer was necessary to enable the partial repayment to be made by electronic transfer. The Defender was familiar with the transfer arrangements from the Clydesdale Bank, and arranged the transfer through that bank for that reason. The transfer followed a discussion the Defender had with the Clydesdale Bank. It was a transfer made between accounts managed by the same relationship manager within the bank. That made the transfer more straightforward."
The Contentions of the Parties
[49] The debate before me was conducted on the basis of Notes of Argument for the pursuer and the defender dated 8 and 9 July 2008 respectively. The oral discussion consisted largely of examination of the productions and cases cited, and there was no material departure on either side from the contentions advanced in the Notes of Argument.
(1) Disposal of the Case
[50] As indicated above (paragraph 11) the liquidator seeks summary decree on the basis that there is no real or genuine defence to the action. Alternatively, the liquidator argues that the defences are irrelevant and that decree should be granted de plano. The defender contends that the matters at issue between the parties cannot be resolved without proof, which should be a Proof before Answer. Both parties refer in support of their arguments to the observations of Lord Rodger of Earlsferry in Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85, paragraphs [15] ff, at pages 89ff.
[51] The defender further contends that, in terms of Section 243(5), a "challenge" envisages an action against the creditors - Baillie Marshall Ltd (in liquidation) v Avian Communications Ltd 2002 SLT 189. The action is therefore fundamentally misdirected.
(2) The Transfer of £270,750 on 24 August 2006
[52] The liquidator starts from the position that there was no debt of £270,750 owed by the company to the defender personally which would justify the transfer of funds to him on 24 August 2006. The liquidator does not accept any of the defender's explanations as to why it was necessary for funds to be transferred from the company to the investors via his personal bank account. The liquidator does, however, accept that the funds transferred to the defender were in due course paid over by him to the investors. The effect was to relieve the defender as guarantor of the debts due by the company to the investors. The transfer of funds to the defender was therefore a preference in favour of the defender as a creditor of the company in respect of his guarantee - Mitchell v Rodger, 1834, 12 S. 802. The preference was to the prejudice of the general body of creditors as demonstrated by the company's bank accounts and the statement of affairs.
[53] The defender contends that he gave no personal guarantee to the investors except Ms Blyth and in her case only to the extent of the 'shortfall' on the "anticipated return" of £65,000 (see the letter dated 17 March 2005 - paragraph 19 above). The sum of £65,000 was paid to Ms Blyth by the defender out of his own personal funds. Consequently, the transaction on 24 August 2006 did not relieve the defender of any liability as guarantor of the debts of the company. The letters to Mr Goold, Mr Dempster and Ms Blyth, founded upon as letters of guarantee, should be construed strictly - Egan v Static Control Components (Europe) Ltd [2004] EWCA Civ 392; Andrews & Millett, The Law of Guarantees (4th edition) pages 89‑93.
[54] The defender next contends that the payment on 24 August 2006 was made to him as agent for the company so that he could repay the debts of the company to the investors which he did. Consequently, the payment on 24 August 2006 did not constitute a preference in his favour. If any preference was created, it was a preference in favour of the three investors who are not sued.
[55] Next, the defender, relying on Section 243(2)(b) of the 1986 Act, contends that the payment was "a payment in cash for a debt which when it was paid had become payable". Payment by cheque amounts to payment in cash. Payment by transferring funds to an agent who receives them only to transfer them to a creditor is also deemed to be a payment in cash - Craig v Hunter & Sons 1905, 13 SLT 525; Newton & Sons Trustees v Finlayson & Co 1928 SC 637; Whatmough's Tr v British Linen Bank 1934 SC(HL) 51; Nordic Travel Ltd v Scotprint Ltd 1980 SC 1. In this case, there are no averments or evidence of collusion between the defender and the investors.
[56] Next, the defender, relying on subsection 243(2)(c), contends that the payment to him by the company was met by his reciprocal obligation to pay that sum to the investors which he duly did - Nicoll v Steel Press (Supplies) Ltd 1992 SC 119.
[57] In his Note of Argument the defender, relying on subsection 243(2)(a), contended that the payments by the defender to the investors were made in the ordinary course of business, being cash payments in respect of debts that were due when they fell due - Nordic Travel (supra). As to whether and when the debts were due, this would require proof. At the debate the solicitor-advocate for the defender conceded that he could not rely on this argument in relation to the sum of £270,750 paid in to the Dickens Personal Account on 24 August 2006.
[58] Finally, on this aspect of the case, the defender contends that, in so far as there may have been an unfair preference in favour of the defender, this cannot have been in relation to the £40,000 paid to Mr Dempster or the £75,000 paid to Mr Goold, since the defender had given no personal guarantee to either of them. Further, his guarantee to Ms Blyth was in respect only of the "shortfall" on the "anticipated return" (£65,000). Consequently, the sum sued for in the second conclusion is excessive.
[59] In reply to these contentions, the liquidator pointed to Baillie Marshall Ltd (in liquidation) v Avian Communications Ltd, 2002 SLT 189, and the examination by Lord Kingarth of the authorities there cited going back to Mitchell v Rodger (supra), as showing that the term "challenge" in Section 243(5) of the 1986 Act is to be read in a broad sense and that the action need not be directed against creditors who ultimately benefit from the "transaction" challenged.
[60] The letters to Mr Goold, Mr Dempster and Ms Blyth should be construed according to their terms - Waydale Ltd v DHL Holdings (UK) Ltd (No. 2) 2002 SLT 224; City Wall Properties (Scotland) Ltd v Pearl Assurance plc [2007] CSIH 79. Their terms are clear and there is no need to resort to special canons of construction. In any event, even if no guarantee was given by the defender to Mr Goold and Mr Dempster, and even if only a limited guarantee was given to Ms Blyth, the whole sum transferred by the company to the defender must be restored - Cay's Tr v Cay, 1998 SC 780; Short's Tr v Chung 1991 SLT 472.
[61] As regards the agency defence, the liquidator argues that section 243 provides for no exemption from challenge on that account; that an agent cannot in any event properly do something that his principal cannot do; and that this defence ignores the fact that, by paying off the investors, the defender was relieved of his obligation as cautioner or guarantor.
[62] As regards the defence under section 243(2)(a) (ordinary course of business), the liquidator argues that a payment to the sole director of a company in order that he can pay off investors cannot be described as "a transaction in the ordinary course of trade or business" - Nordic Travel (supra), per the Lord President at page 20.
[63] As regards the defence under section 243(2)(b) (debt due and payable), the liquidator points out, first, that there was no debt due to the defender which "had become payable", and that is the short answer to the defender's argument. However, even if the Court were to look beyond the payment to the defender, the loans by the investors were not debts that "had become payable". No date for repayment had been set and no demand for repayment had been made. In particular, the "return" of 25% was simply a percentage of the sum loaned without reference to the "time value of money". There was no proper justification for the defender to organise repayment to the investors at that time and in that fashion. The defender's averments that "payment was considered to be due" (Answer 10) and that "It was normal practice to consider that such loans were due to be repaid on the sale of the final property when that occurred" are irrelevant, or at any rate so lacking in specification as not to merit reference to proof. In so far as it might be necessary to show collusion, the relevant collusion would be between the company and the defender, not between the defender and the investors.
[64] As regards the defence under section 243(2)(c) (reciprocal obligation), the liquidator contends that a payment by a company to a person in order that that person may pay that sum to another person cannot be regarded as a "reciprocal obligation" for the purposes of the Act. Nothing of value was gained by the company in return for the payment of £270,750 to the defender. On the contrary, the company's estate was diminished as a result of the transaction - Cay's Tr v Cay 1998 SC 780. The "consideration" given by the defender was not "a real one and fair value" - Goudy on Bankruptcy, page 91. In any event, reduction of prior indebtedness is in reality an old debt disguised as a new consideration and is not a novum debitum - Nicoll v Steel Press (supra). In so far as collusion may be relevant, the relevant collusion would be between the company and the defender.
(3) The Discount of £10,000 in favour of Mr Dempster
[65] The liquidator relies, first, on Clause 1.2 of the missives between the company, Mr Dempster and Ann Graham (paragraph 21 above). The "investor's incentive" there provided for did not become "completely effectual" until the date of settlement (12 July 2006) - Craiglaw Developments v Wilson 1997 SC 356; Burnett's Trustee v Grainger, 2004 SC (HL) 19; Accountant in Bankruptcy v Orr 2005 SLT 1019. The liquidator relies, further, on the statement in the defender's email of 5 June 2007 (paragraph 42 above) to the effect that "10k ... was knocked off the purchase price from the unit he bought". The discount in favour of Mr Dempster reduced the defender's liability as guarantor and, consequently, was a preference in favour of the defender.
[66] The defender's position is that there was no personal guarantee by the defender of any debt due to Mr Dempster. The company received value in respect of the discount in favour of Mr Dempster in that the company's debt of that amount to Mr Dempster was paid off in return.
Discussion
[67] In this section, I deal successively with the following points:
· The defender's contention that there is no relevant "challenge" within the meaning of section 243(5) of the 1986 Act;
· Assessment of the extent to which the material (documents and averments) before me is sufficient to determine whether a guarantee, and if so what guarantee, was given by the defender to Ms Blyth, Mr Goold and Mr Dempster;
· Assessment of the "transaction" whereby £270,750 was transferred to the defender's personal bank account on 24 August 2006, and whether this was a preference struck at by section 243(1) of the 1986 Act;
· Assessment of the "transaction" involving a discount of £10,000 in favour of Mr Dempster, and whether this was a preference struck at by section 243(1).
The defender's contention that there is no relevant "challenge"
[68] The defender's contention, as I understand it, is that there is no relevant challenge within the meaning of section 243(5) of the Act on the ground that the action should be directed, not against the defender but against the investors who were in reality the creditors preferred. In my opinion, this contention is unfounded.
[69] What the Act envisages is a challenge by the liquidator or a creditor to a "transaction entered into by [the] company". In this case, two transactions are identified by the liquidator as having been entered into by New Alba (Redwood House) Limited. As regards the first, there is no question but that the sum of £270,750 was transferred on 24 August 2006 from the company's Development Loan Account to the defender's personal account (see paragraph 28 above). The nature of the second transaction is less clear, but the liquidator's contention is that the relevant transaction consisted in the grant by the company to Mr Dickens, on (or possibly after) 12 July 2006, of a discount of £10,000.
[70] Having identified the transaction in question, it is then necessary to enquire whether (a) it had the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors and, if so, (b) whether that preference was created not earlier than 6 months before the commencement of winding up. If the Court is satisfied on these points, then it shall grant decree of reduction or for such restoration of property to the company's assets or other redress as appropriate. The Act is silent as to the proper defender in a challenge brought under subsection 243(5). This is natural given the range of possible means of redress open to the Court.
[71] In the present case, there is no doubt that the first transaction and, on the basis averred by the liquidator, the second transaction both occurred within the period of six months prior to winding up. That condition is therefore satisfied.
[72] Further, if and in so far as either transaction had the effect of conferring a preference on the defender as a creditor of the company to the prejudice of the general body of creditors, that condition is also satisfied. It is, however, in dispute as to whether the transactions in question had that effect, and that is essentially the crux of the case.
[73] Since Mitchell v Rodger (supra), it has been clear as a matter of law that, where a payment has been made, directly or indirectly, to a creditor through the instrumentality of a cautioner, which has the effect of relieving the cautioner, the trustee or liquidator can proceed against the cautioner without necessity of proceeding against the creditor to whom the payment was made.
[74] In my opinion, therefore, on the basis of the case as stated by the liquidator, there is no ground on which it can be said that there is no relevant challenge within the meaning of section 243.
Did the defender give a personal guarantee to Ms Blyth, Mr Goold and Mr Dempster?
[75] In approaching my assessment of the documents and pleadings, I am mindful of the observations of Lord Rodger of Earlsferry in Henderson v 3052775 Nova Scotia Ltd (supra) at 2006 SC (HL) pages 89-90. His Lordship drew the distinction between
· a motion for decree de plano on the ground that the defences, taken pro veritate, are legally irrelevant, and
· a motion for summary decree on the ground that
o there is no issue raised by the defender which can properly be resolved only at proof, and
o on the facts clarified from documents, articles and affidavits, the defender has no defence to the action.
[76] The liquidator's primary motion is for summary decree. Accordingly, at this stage of the discussion, I am concerned with the question whether the pleadings, productions and, in some instances, concessions at the bar by the solicitor-advocate for the defender, are sufficient, without further proof, to enable me to decide whether the defender gave a personal guarantee to Ms Blyth, Mr Goold and/or Mr Dempster and, if so, in respect of what?
[77] In his letter of 30 May 2007 (paragraph 41 above) the liquidator put to the defender:
"I note that in relation to the loan from Maureen Blyth you personally guaranteed repayment. I should be obliged if you would confirm that this was also the case in relation to the loans from L Dempster and J Goold."
The defender replied in unqualified terms by email on 5 June 2006 (paragraph 42):
"Yes, all 3 investors were guaranteed a 25% return. They were sent out an identical letter as per the one in your possession, only with changes of names and address."
Further, in his original Defences, the defender expressly admitted that identical letters were sent to all three investors and also that the investors made the loans to the company on the basis of the defender's guarantee that they would each receive a 25% return on their loans. These admissions have since been withdrawn, and the defender now seeks to place a quite different construction on the letters sent to the investors.
[78] In the light of the information supplied by the defender and the admissions that have now been withdrawn, the liquidator's case has been stated on the basis that a personal guarantee was given to all three investors in terms of the letter to Ms Blyth dated 17 March 2005 (paragraph 19 above). The defender's position now is that he did not write in those terms to either Mr Goold or Mr Dempster. He gave a personal guarantee only to Ms Blyth and then only in relation to any shortfall on the return of £65,000. He admits, however, under reference to the letters dated 14 and 28 January 2005 (paragraphs 14 and 15 above), that a guarantee was given by the company to Mr Goold and Mr Dempster that they would each receive a 25% return on their loans (see Answer 5, quoted at paragraph 46 above). (Although we only have a copy of a letter dated 14 January 2005 to Mr Goold, the defender admits (Answer 2) that an identical letter was sent to Mr Dempster.)
[79] Dealing first with the admitted guarantee to Ms Blyth, it is to be noted that the letter of 17 March 2005 was written on paper headed New Alba Limited and signed by the defender as Managing Director. The copy letter dated 1 March 2005 (paragraph 17 above) does not have a letterhead, but the letter from Mr Hay dated 14 March 2005 was addressed to the defender as "Director New Alba". The letters of 1 and 14 March 2005 refer to the return of 25% as "guaranteed". The letter of 14 March 2005 goes further and says that "should the project fail to deliver the anticipated return, I can confirm that I will personally guarantee any shortfall".
[80] In my opinion, the letter of 14 March 2005 cannot rationally be construed as meaning that the defender's personal guarantee extended only to any shortfall on the anticipated return of 25% and did not extend to any shortfall on repayment of the principal sum. It may be that the defender did not contemplate the possibility that the project would turn out so badly that the principal loan could not be repaid in full. But it is, in my opinion, inconceivable that a lender in Ms Blyth's position would have been prepared to accept that, while she would be able to recover in full her £65,000 investment return, she might be unable to recover all or part of the principal sum of £260,000. "I will personally guarantee to meet any shortfall" must be construed as meaning what it says.
[81] I therefore find that the documents cited are sufficient, without further proof, to show (1) that the defender personally guaranteed any shortfall in repayment to Ms Blyth, and (2) that that guarantee extended both to the principal sum of £260,000 and to her "guaranteed" return of £65,000 - i.e. £325,000 in all.
[82] While that finding may be sufficient to establish that the first transaction was a preference in the defender's favour and that the sum of £270,750 must consequently be repaid by him to the liquidator, it is necessary, in relation to the second transaction, to determine whether the defender gave a personal guarantee to Mr Dempster, and a finding on that matter will necessarily apply to Mr Goold also.
[83] In my opinion, in spite of the defender's earlier admissions, it is improbable that letters were sent in January 2005 to Mr Goold and Mr Dempster in terms identical to those of the letter to Ms Blyth dated 17 March 2005. That letter to Ms Blyth must be read in the context that the loan by Ladon Properties Limited had already been agreed in correspondence between the defender and Mr Hay on Ms Blyth's behalf and that the amount of the loan had actually been paid three days previously on 14 March (paragraphs 17 and 18 above). In my view, the purpose of the letter of 17 March was to reassure Ms Blyth personally, "confirming" what had already been agreed with Mr Hay. It is, in my opinion, in the highest degree unlikely that identical letters would have been sent some six to eight weeks earlier to Mr Goold and Mr Dempster.
[84] There are, nevertheless, significant similarities between the letters to Mr Goold and Mr Dempster in January and those to Mr Hay and Ms Blyth in March 2005. First, there is the same reference to a "guaranteed" return of 25%. Second, while the copy letters to Mr Goold and Mr Dempster dated 14 and 28 January 2005 do not show the letterhead of the original, both the terms and the tenor of those letters suggest that they were (like the letters to Mr Hay and Ms Blyth) written on the notepaper of New Alba Limited, not of New Alba (Redwood House) Limited. This inference is corroborated by the defender's statement to the liquidator (paragraph 35 above) that New Alba (Redwood House) Limited did not commence trading until 1 February 2005 - the date when the loans from Mr Goold and Mr Dempster were actually paid.
[85] I attach significance to two further considerations. First, in his letter of 17 March 2005 to Ms Blyth, the defender "confirms" that he will personally guarantee to meet any shortfall. This implies that the "guarantee" in his earlier letter to Mr Hay, which he signed as managing director of New Alba Limited, is to be construed as being also a guarantee given on his own personal account. Second, the defender admits that a guarantee (albeit, as he now says, a guarantee by the company) was given to Mr Goold and Mr Dempster to the effect that each of them would receive a 25% return on their loans. That admission necessarily implies that the letters of 14 and 28 January 2005 are to be construed as giving such a guarantee. If, as seems to me probable, the letters were written on the notepaper of New Alba Limited, that guarantee was not, as the defender now avers, given by New Alba (Redwood) House) Limited which had, at that stage, not commenced trading.
[86] In the course of the debate, the solicitor-advocate for the defender sought to explain various statements by the defender to the liquidator (see, for example, paragraphs 38 and 40 above), as being attributable to a failure on the part of the defender to "focus on differences between the companies and between a personal guarantee and a company guarantee". If, faced with the serious responsibility of explaining the company's affairs to the liquidator, the defender failed to focus on differences between a company guarantee and a personal guarantee, it seems unlikely that he was any more precise in his earlier dealings with the investors. As the defender himself wrote to the liquidator (see paragraph 40 above): "Rightly or wrongly, my view was that the investors had lent me money to take part in the development, and I paid them back as soon as I could."
[87] Finally if, as the defender now avers, he was under no personal obligation to pay any more than £65,000 to Ms Blyth, it is difficult to see why, as he was eager to assert, he should have contributed more than £100,000 of his own money to ensure repayment of all three investors in full, including their 25% return.
[88] In the light of all these considerations, it seems to me that the material before me is amply sufficient to establish that the letters of 14 and 28 January 2005 to Mr Goold and Mr Dempster are to be construed as offering a personal guarantee of repayment both of the principal loans and a 25% return - an offer that was accepted by them in making the loans. I cannot see that parole evidence at proof would advance the matter in any way.
Was the 'transaction' on 24 August 2006 a preference struck at by Section 243?
[89] There is no dispute that on 24 August 2006 the defender caused the sum of £270,750 to be transferred from New Alba (Redwood House) Limited's Development Loan Account to the Dickens Personal Account (paragraph 28 above). Neither is there any dispute that the defender had no claim upon the company for that amount (irrespective of whether, even if he had had such a claim, he would have been entitled to make such a transfer).
[90] Various explanations have been given by the defender as to why the transfer was made:
· that it was "my personal money from the sale of some property and transferred into that account to enable me to pay the Private Investors back" (paragraph 38 above);
· that "it was transferred to my account to enable me to forward the money to the investors" (paragraph 40);
· that "the transfer was necessary to enable the partial repayment to be made by electronic transfer. The [company was] unable to make an electronic transfer from [its] own account but that facility was available for transfers from the Clydesdale account." (paragraph 47);
· that "the transfer was necessary to enable the partial repayment to be made by electronic transfer. The Defender was familiar with the transfer arrangements from the Clydesdale Bank, and arranged the transfer through that bank for that reason. The transfer followed a discussion the Defender had with the Clydesdale Bank. It was a transfer made between accounts managed by the same relationship manager within the bank. That made the transfer more straightforward" (paragraph 48).
[91] The solicitor-advocate for the defender candidly accepted at the hearing that none of these explanations could be supported. In reality, the payments to Mr Goold and Mr Dempster were not made by electronic transfer but were made by cheque, in Mr Goold's case more than a fortnight after the money had been transferred to the Dickens Private Account. It is not clear how the first payment was made to Ms Blyth (also more than a fortnight after 24 August 2006), but the second was made from a different account. (See paragraph 32 above.)
[92] The effect of the transaction on 24 August 2006 was to transfer from the company's bank accounts to the defender's personal account the whole cash assets of the company, leaving only sufficient to cover bank interest charges (see paragraphs 27 to 29 above). In my opinion, in the absence of any credible explanation for the transaction, that is sufficient to entitle the liquidator to decree for repayment of the sum so transferred without it being necessary to determine whether the transaction constituted an unfair preference struck at by Section 243.
[93] In so far as it may be necessary to determine whether the transaction constituted an unfair preference, there is no doubt (and indeed the defender insists) that the whole of the sum so transferred was applied by him towards satisfaction of the loans by Ms Blyth, Mr Goold and Mr Dempster. In view of my finding that the defender had personally guaranteed repayment of their loans and their 25% return (paragraphs 81 and 88 above), the effect of doing so was to discharge pro tanto the defender's cautionary obligation. The case therefore falls squarely within the ratio of Mitchell v Rodger (supra). The effect of the transaction was plainly to prejudice the general body of creditors. The liquidator is therefore entitled to decree in terms of the first and second conclusions.
[94] Lest I be thought to have overlooked the defender's other defences, I deal with them briefly. As regards the claim that the defender was acting as agent for the company for the purpose of making payment to Ms Blyth, Mr Goold and Mr Dempster, no credible reason is given why it was necessary for the defender to act as agent or intermediary in making such payments nor, even if that were so, why the money had to pass through his personal bank account and be held there for a matter of weeks before being paid over.
[95] The delay in transferring money to the investors from the Dickens Personal Account is also at least a partial answer to the defender's claim, relying on Section 243(2)(b), that the payments to the investors were "payments in cash for debts which when they were made had become payable". But it is also clear, as counsel for the liquidator argued, that no date for repayment of the investors had been set and no demand for repayment had been made. In particular, the "return" of 25% was simply a percentage of the sum loaned without reference to the "time value of money" - in other words, it was not a pre-estimate of interest on the loan.
[96] The defender avers that "payment was considered to be due" (Answer 10) and that "It was normal practice to consider that such loans were due to be repaid on the sale of the final property when that occurred"(Answer 6). These averments are hopelessly lacking in specification. It is not said who considered payment to be due, nor in what circles it is "normal practice" to repay investors in a project before the debts incurred in realising the project have been satisfied. The latter proposition is, in my opinion, inherently improbable and could not, in my opinion, be the basis of a relevant defence.
[97] Finally, the defender's argument based on subsection 243(2)(c) (paragraph 56 above) is, in my opinion, absurd and it is sufficient for me to refer to the liquidator's argument in reply (paragraph 64 above).
The transaction involving a discount of £10,000 in favour of Mr Dempster
[98] This is the only aspect of the case that has caused me difficulty and I have seriously considered whether it would be necessary to remit it for proof before answer.
[99] The missives for the sale of plot 3 were in favour not only of Laurie Dempster but also of Ann Graham (see paragraphs 20 and 21 above). They provided for a deduction from the agreed price of £775,000 of £10,000 as an "investor's incentive" provided that the price was paid without unreasonable delay. Mr Dempster alone was the "investor" but Ms Graham was also the beneficiary of this stipulation. As noted above (paragraphs 23-24), the sum credited to Mr Dempster on 12 July 2006 was £733,217.12, and there is no explanation of the discrepancy between that sum and the agreed price of £775,000 less £10,000.
[100] In his letter of 30 May 2007 to the defender (see paragraph 41 above) the liquidator sought clarification of the situation as regards the return on Mr Dempster's investment. He received the reply (paragraph 42 above) that "Laurie Dempster purchased plot 7 (sic) at Redwood House, and therefore his return was 10k. This was knocked off the purchase price from the unit he bought." In the last version of his pleadings (Answer 9), the defender avers "£775,000 was the price at which plot 3 had been advertised for sale. ... The £10,000 reduction was to meet the £10,000 return Mr Dempster was due by the Company. The reduction was therefore in payment of a debt due by the Company".
[101] In my opinion, counsel for the liquidator was correct in arguing, on the basis of the authorities cited at paragraph 65 above, that the reduction in price did not become completely effectual until the transaction for the sale of plot 3 was otherwise complete. The stipulation for a reduction in the price of £10,000 as an investor's incentive was conditional on the price being paid without unreasonable delay - a condition that could not be held to have been satisfied until the price was actually paid.
[103] The sum paid by Mr Dempster on 12 July 2006 was considerably less than the full purchase price of £775,000, and the defender does not dispute that, one way or the other, during the six month period prior to winding up, Mr Dempster was given credit to the extent of £10,000 in respect of the 25% return on his investment of £40,000. No person other than the defender made (or could have made) this arrangement, the effect of which was to relieve the defender pro tanto of his obligation as guarantor to Mr Dempster.
[104] I therefore conclude that the transaction, however it was effected, whereby on 12 July 2006 Mr Dempster received a discount of £10,000 in respect of his 25% return on investment, constituted a preference in favour of the defender to the prejudice of the general body of creditors struck at by Section 243.
Decision
[104] The liquidator's primary motion is for summary decree in terms of his conclusions. The test that I have to apply was set out by Lord Rodger of Earlsferry in Henderson v 3052775 Nova Scotia Ltd (supra) at page 90, paragraph 19:
"A judge who is considering a motion for summary decree is entitled to proceed not merely on what is said in the defences, but on the basis of any facts which can be clarified, from documents, articles and affidavits, without trespassing on the role of the proof judge in resolving factual disputes after hearing the evidence. The judge can grant summary decree if he is satisfied, first, that there is no issue raised by the defender which can properly be resolved only at proof and, secondly, that, on the facts which have been clarified in this way, the defender has no defence to all, or any part, of the action. In other words, before he grants summary decree, the judge has to be satisfied that, even if the defender succeeds inn proving the substance of his defence as it has been clarified, his case must fail."
I would only add that I must, of course, be satisfied that the material before me is sufficient to entitle the pursuer to decree.
[105] In my opinion, for all the reasons discussed above, the material before me is amply sufficient to establish the validity of the liquidator's claims for declarator and payment, and, further, that the defender has no stateable defence to those claims. The liquidator is therefore entitled to summary decree.
[106] As I have noted above (paragraph 92), I would have been prepared to grant decree in terms of the second conclusions for repayment of the sum of £270,750 irrespective of whether the defender had given a personal guarantee to the investors. Further, even if the defender gave a personal guarantee only to Ms Blyth, that is sufficient, on the authority of Cay's Tr v Cay (supra) to entitle the liquidator to decree for the whole amount. Since, however, I have found that the defender gave a personal guarantee to all three investors, I shall sustain the pursuer's third plea-in-law and grant summary decree in terms of the first and second conclusions.
[107] Further, having held that the defender was responsible for securing a discount of £10,000 in favour of Mr Dempster and reducing pro tanto his liability as guarantor, I shall sustain the pursuer's fourth plea-in-law and grant summary decree in terms of the third and fourth conclusions.
[108] In so far as it may be necessary for me to do so, I shall repel the plea-in-law for the defender.
[109] I shall not include in my interlocutor any finding of expenses, but it may be useful for me to indicate that, subject to any submissions the defender may wish to make, I can at the moment see no reason why expenses should not follow success.