The Vintage Aviator Ltd v DeMarco

The Vintage Aviator Ltd, along with several other plaintiffs, sought leave to continue their proceedings against Eugene John DeMarco, who had recently been adjudicated bankrupt. The proceedings involved complex claims including breach of fiduciary duty, dishonest assistance, and unjust enrichment. The defendants, including The Old Stick & Rudder Co Ltd, opposed the application on various grounds. The court, in delivering its judgment, carefully considered the statutory framework and the principles guiding applications for leave under s 76(2) of the Insolvency Act 2006. These principles include ensuring fairness, preventing prejudice to other creditors, and considering the complexity and public interest in the proceedings. The court also noted the potential for financial benefit to the plaintiffs if the claims were successful, especially given the exception for debts incurred by fraud, which might survive the bankrupt's discharge.

The court concluded that it was in the interest of justice to grant leave for the proceedings to continue, subject to a condition that any judgment obtained by the plaintiffs could not be enforced without the leave of the court. This condition was to ensure that the Official Assignee retains ultimate control over the enforcement of any judgment against the bankrupt. The court was satisfied that the plaintiffs would not gain an unfair advantage and that the claims, though complex, were not clearly unsustainable. The decision was also influenced by the public interest in resolving allegations of fraud and the significant resources already invested in the proceedings. Costs were reserved pending further directions.