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Law of insolvency: Caselaw summaries
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Law of insolvency: The legal position of the insolvent person
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Topic 5: CasesMaudsley’s Trustees v Maudsley
Facts
- R purchased fixed property of 8500euros
- To pay this R obtained a loan from a Building Society of 7750euros on the security of a first mortgage
bond on this property and second bonds on two other property belonging to her
- The insolvent whom she was married with out of community of property, donated to her 750euros
- Thereafter the insolvent, a building contractor, erected a block of flats on the property at a contract
price of 9100euros
- To assist in meeting this costs R procured a further loan of 6850euros on the security of a further bond
all over her properties in favour of the Building Society
- Upon sequestration of the insolvent’s estate, the property in question vested in the trustees ito s21(1)
of Insolvency Act
- The trustees refused to release it in pursuance of an application ito s21(2)
Court held
- Trustees were bound to release the property as being property owned by the respondent under a valid
title against the creditors of the insolvent within the meaning of s21(2)(c) in the absence of evidence
justifying the inference that the transactions between her and the insolvent were simulated or that she
acted as a nominee or dummy for her husband
- S21 does not establish new grounds upon which the validity of a title of a solvent spouse against the
creditors of any insolvent spouse may be attacked
- It merely shifts the onus of proof onto the solvent spouse
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