The High Court refused Anthony Casey’s application to annul his bankruptcy, finding no grounds to conclude that he ought not to have been adjudicated bankrupt. It separately ordered the petitioning creditors to set aside a judgment mortgage registered over a Dublin property after the adjudication.
Mr Justice Brian J. McGovern delivered the judgment on 10 July 2014. Casey had been adjudicated bankrupt on 14 January 2013. His motion, dated 2 April 2014, sought to set aside the adjudication or, alternatively, to have the judgment mortgage registration removed.
The judge said an application under section 16 of the Bankruptcy Act was out of time. He considered that a separate annulment application under section 85C(1)(b) was not subject to section 16’s time limit, though the delay could be taken into account when deciding whether annulment was warranted.
The judgment mortgage affidavit had been sworn on 12 March 2012, but the creditors’ solicitor arranged for it to be registered on 29 January 2013, after Casey’s adjudication. The solicitor said he had acted in error. After the Official Assignee’s office queried the security, the creditors accepted they were not entitled to register the mortgage after the adjudication and consented to an order setting aside its registration. The court said this resolved that part of Casey’s motion.
Casey also argued that the bankruptcy petition involved material non-disclosure and had been brought for an improper purpose. The judge rejected his challenge to the creditors’ reliance on a second return of “nulla bona” on an order of fieri facias, finding no reason in principle why execution could not be attempted more than once. He said the material non-disclosure had been adequately explained and cured when the creditors agreed to give up the security for the benefit of all creditors. There was no evidence that it had been deliberate or otherwise justified annulment.
The judge found no evidence that the petition had been brought for a purpose other than recovering the debt. He noted that Casey had filed a statement of affairs after the adjudication and that the statutory sitting had passed. The debt was not disputed and exceeded €20,000; the other requirements for the petition had been met. The application to annul the bankruptcy was refused.