How to apply to restrain the presentation of or notification of a winding-up petition
How to apply to restrain the presentation of or notification of a winding-up petition

The following Restructuring & Insolvency guidance note provides comprehensive and up to date legal information covering:

  • How to apply to restrain the presentation of or notification of a winding-up petition
  • Opposing a winding-up petition
  • Injunction to restrain the presentation of or notice of a winding up petition

Opposing a winding-up petition

Establishing a debt

There is no requirement to serve a statutory demand on a company before presenting a winding-up petition in respect of it.

It is a long established principle that winding-up proceedings should not be commenced where the petition debt is genuinely disputed on substantial grounds. Further, it is an abuse of process to seek to use the winding-up court as a debt collection agency (however, see Sell Your Car With Us Ltd v Sareen (2019) in which the judge held that a creditor owed an undisputed debt has a right to petition the court for winding-up). It is therefore prudent for a creditor to issue a statutory demand before commencing winding up proceedings, in order to establish an undisputed debt, unless a judgment debt is already established.

Section 122(1)(f) of the Insolvency Act 1986 (IA 1986) permits the court to wind-up a company if it is unable to pay its debts. See Practice Note: When can you wind-up a company when the debt is disputed? provides further information on disputed debts and winding-up proceedings. Also of interest is Practice Note: Disputed statutory demands.

Injunction to restrain the presentation of or notice of a winding up petition

Under Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 7.24 it is possible for