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Morphitis v Bernasconi [2003] EWCA Civ 289

14 March 2003

Company Law - Winding up - Fraudulent trading - Restriction on re-use of name of insolvent company - Scheme for transfer of business to new company in order to avoid onerous liabilities under leases - Old company wound up on landlord’s petition - Business not carried on with intent to defraud landlord - Directors not liable for fraudulent trading - Judge wrong to order contribution to company’s assets - No power to include punitive element in amount of any contribution ordered - Insolvency Act 1986, ss 213, 216 TMC ran a haulage business and was the tenant of warehouse and depot premises under four leases. TMC’s business was unprofitable in 1991 and 1992 and the directors (M and B) identified the principal problem as the onerous rental obligations under the leases. They took advice as to whether and how they could free TMC from the liabilities under the leases. On advice they implemented a scheme under which TMC ceased trading at the end of 1992 and the business was thereafte...

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