Deeds in the drawer—Swift Advances plc v Ahmed

Deeds in the drawer—Swift Advances plc v Ahmed

How will the courts approach the ‘deeds in the drawer’ phenomenon? Josephine Hayes of Gough Square Chambers comments on the decision in Swift Advances plc v Ahmed where the court considered fresh evidence at a late stage in the proceedings and set aside a transaction which was not recorded on any public register.

Original news

Swift Advances plc v Ahmed and another [2015] EWHC 3265 (Ch), [2015] All ER (D) 177 (Nov)

The Chancery Division set aside a deed purporting to place property into trust for the first respondent’s wife. If the deed had been effective it would have defeated the claimant loan company’s possession proceedings against the first respondent. The court made an order restoring the position to what it would have been if the deed had not been made.

Briefly, what was the background to the application?

The debtor, Mr Ahmed, was sole registered proprietor of two houses. In May and October 2007 the creditor, Swift, made him two loans each secured by a legal charge over one of the houses. After the debtor defaulted and Swift commenced claims in the county court for possession of the properties, the debtor’s wife, Mrs Ahmed, produced a deed of trust dated December 2006 between the debtor and herself whereby she asserted that the debtor had transferred to her the entire beneficial ownership of both properties. Subsequently she produced a previous deed of trust in almost identical terms made in 1996, which related to one of the properties.

What were the legal issues the judge had to decide in this application?

The application was under section 423 of the Insolvency Act 1986 (transactions defrauding creditors). The main issues were whether the debtor’s purpose in entering into the transactions had been to place the assets beyond the reach of those who might have a claim against him. If so, then what relief should the judge grant to restore the position to what it would have been if the transaction had not been entered into? A subsidiary issue arose as to whether a transfer of the legal and beneficial interest in one of the properties to the debtor alone made in November 2006 by the debtor and his wife as joint proprietors, which the creditor found after the judge had reserved his judgment, should be admitted into evidence.

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.