[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Power v Petrus Estates Ltd & Ors [2008] EWHC 2607 (Ch) (31 October 2008) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/2607.html Cite as: [2009] BPIR 141, [2009] 1 BCLC 250, [2008] EWHC 2607 (Ch)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
(On Appeal from Registrar Derrett)
IN THE MATTER OF POWER BUILDERS (SURREY) LIMITED
AND IN THE MATTER OF THE INSOLVENCY ACT 1986

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 October 2008

Mr. Justice Lewison:

1. Mr John Power is or was the sole director of Power Builders (Surrey) Ltd ("the company"). As its name suggests, it carried on business as a building contractor. Its main client was Petrus Estates Ltd ("Petrus") of which Mr Power was also the managing director. The company ran into financial difficulties; and it was decided that it could no longer go on trading. In those circumstances the company was required by section 98 of the Insolvency Act 1986 ("the Act") to cause a meeting of its creditors to be summoned. Section 99 of the Act requires the directors of the company to lay a statement of affairs before the creditors' meeting; and section 99 (1)(c) requires a director of the company to be appointed to preside at that meeting. Since Mr Power was the sole director of the company, he was the only candidate. The creditors' meeting, chaired by Mr Power, took place on 16 July 2007 at the offices of Mr Bhardwaj whom Mr Power proposed as liquidator.
2. A number of trade creditors had submitted proofs of debts; and they were represented either in person or by proxy at the meeting. A number of persons who claimed to be creditors (including Mr Power himself) had not submitted proofs of debts. The creditors who had submitted proofs of debts were:

Petrus	£2,134,918.29
HMRC	£108,000
Tower Stone Gallery Ltd	£21,000
Elevation Lift Services Ltd	£3,076.15
Hughes Electrical Services	£6,279.03
Paul Bright	£40,000
John Noad (Building Environment Ltd)	£17,687.50
Skilltran	£2,056.25

3. At the meeting, Mr Bhardwaj announced that nominations had been received for the appointment of Mr Christopher Latos and Mr Stephen Holgate as joint liquidators; and that one of the purposes of the meeting was to vote on the appointment of liquidators of the company. It was the only vote taken.
4. On the advice of Mr Bhardwaj Mr Power, as chairman of the meeting, admitted the proofs of all creditors for voting purposes, with the exception of the proof of Petrus. In relation to that claim he marked it as objected to but allowed Petrus to vote for the full extent of its claim. Mr Power did not vote in respect of his own claim and Skilltran did not vote either. All the other creditors (including Petrus) voted in favour of the appointment of Messrs Latos and Holgate, who were thus appointed as joint liquidators.
5. On 8 August 2007 Mr Power applied to the Court for an order that:

"1. The vote of Petrus Estates Limited who are claiming to be a creditor of Power Builders Surrey Limited ("the Company") at the creditors' meeting … be disallowed as the said Company is not a creditor of the Company; and

2. That a further meeting of creditors be convened to decide who should be appointed liquidator of the Company without any regard to any claim of Petrus Estates Ltd."

6. The application was supported by a witness statement made by Mr Power himself which said:

"As a result of [Petrus'] claim being submitted and my receiving advice from Mr Ashok Bhardwaj … I allowed Petrus to vote for this sum but marked their claim "objected to". The result of allowing their vote was that their nominees as liquidators, Christopher Latos and Stephen Holgate were appointed liquidators. I believe that if the vote of Petrus had been disallowed, then the decision of the meeting would have been different and that is why I seek in my application an order that a new meeting of creditors be held."

7. He also explained that the reason why he marked Petrus' proof as "objected to" was that it was a claim arising under a building contract which was disputed and which was not suitable for summary determination. In his second witness statement Mr Power explained that one of the reasons why he was making the application was that he had been informed that he was personally liable for the company's debts; that his belief was that the company did not owe Petrus any money; and that the joint liquidators' impartiality in investigating the claim might be compromised because they were being funded by Petrus. In his fourth witness statement Mr Power said that since the date of the liquidation he has paid off many of the company's creditors whose claims amount to some £216,000. Although he does not say so expressly he claims to have acquired their rights against the company (including the right to vote). Thus he concluded that if there were to be another meeting of the company's creditors "I, as the effective owner of many of the debts of the company would be in a position to nominate a liquidator of my choice." One other very significant event has also taken place since the date of the meeting. The joint liquidators have investigated the conduct of Mr Power himself. Their conclusions so far are contained in a letter before action dated 10 October 2008 and written by their solicitors. In that letter they assert that Mr Power declared unlawful dividends and made unlawful drawings from the company; and that Mr Power has an unlawful overdrawn director's loan account. The upshot, they say, is that Mr Power owes the company more than £622,000.
8. Although Mr Power's application did not specify the provision under which it was made, it is common ground that it was made under rule 4.70 of the Insolvency Rules 1986. The application came before Registrar Derrett for a case management conference on 6 November 2007. Rather to the surprise of counsel then appearing for Mr Power (not Mr Doyle), she acceded to an application to strike out the application which had been intimated only that morning by counsel for Petrus; and refused Mr Power's application for an adjournment. Her reasons for striking out the application were essentially as follows:

i) Even if Petrus' vote had been rejected the outcome of the creditors' meeting would not have been any different;

ii) Mr Power could himself have rejected Petrus' proof, but did not;

iii) Mr Power could not, as chairman of the meeting, appeal against his own decision.

iv) There was no allegation that the joint liquidators were acting improperly or partially and consequently there was no justification for reconvening the meeting or removing the joint liquidators.

9. With the permission of David Richards J, Mr Power now appeals. It is agreed on all sides that although Mr Power might have had a legitimate grievance that his appeal was struck out almost without any prior warning, he has now had a chance to put forward his side of the argument, and that whether this appeal against Registrar Derrett's decision should be allowed or dismissed will depend on the underlying merits of the application rather than on any procedural irregularity.
10. The relevant parts of rule 4.70 of the Insolvency Rules 1986 provide as follows:

"(1) At any creditors' meeting the chairman has power to admit or reject a creditors' proof for the purpose of his entitlement to vote; and the power is exercisable with respect to the whole or any part of the proof.

(2) The chairman's decision under this Rule, or in respect of any matter arising under Rule 4.67, is subject to appeal to the court by any creditor or contributory.

(3) If the chairman is in doubt whether a proof should be admitted or rejected, he shall mark it as objected to and allow the creditor to vote, subject to his vote being subsequently declared invalid if the objection to the proof is sustained.

(4) If on an appeal the chairman's decision is reversed or varied, or a creditor's vote is declared invalid, the court may order that another meeting be summoned, or make such other order as it thinks just."

11. The general scheme underlying the operation of this rule is the same as that underlying rule 5.22 in relation to personal insolvency (formerly rule 5.17). In relation to that rule Harman J said in Re a Debtor (No 222 of 1990) ex p the Bank of Ireland [1992] BCLC 137, 144:

"In my judgment the scheme of the meeting rules in r 5.17 is quite plainly a simple one. As one would expect the meeting is not the place to go into lengthy debates as to the exact status of a debt, nor is it the time to consider such matters as this court, sitting as the Companies Court, frequently has to consider as such whether a debt is bona fide disputed upon substantial grounds, an issue which leads to a great deal of litigation and frequently takes a day or so to decide. None of that could possibly be a suitable process to be embarked upon at a creditors' meeting.

The scheme is quite clear. The chairman has power to admit or reject; his decision is subject to appeal; and if in doubt he shall mark the vote as objected to and allow the creditor to vote. That is easily carried out upon the basis advanced by Mr Moss QC, Mr Mann and Mr Trace. It provides a simple clear rule for the chairman, not a lawyer, faced at a large meeting with speedy decisions necessary to be made to enable the meeting to reach a decision. On that basis the chairman must look at the claim; if it is plain or obvious that it is good he admits it, if it is plain or obvious that it is bad he rejects it, if there is a question, a doubt, he shall admit it but mark it as objected."

12. If the chairman decides to mark the claim as "objected to", he must allow the alleged creditor to vote, but the vote is subject to being subsequently declared invalid if the objection to the proof is sustained. This is expressly provided for in rule 4. 70 (3) itself. It is not exactly as Harman J suggested; namely that the claim is admitted but marked as objected to. Rather the claim is objected to but the creditor is allowed to vote. This gives rise to a slight mismatch between the chairman's powers and the right of appeal. What is contemplated is a quick decision by the chairman, with the possibility of a more leisurely examination of the objection to the proof by the court. Yet the only right of appeal is that contained in rule 4.70 (2) which allows an appeal against the chairman's decision. Even if the objection to the proof is subsequently sustained, with the result that that creditor's vote is invalidated, the chairman's decision may have been entirely correct. It is an oddity if an appeal succeeds against an entirely correct decision, but that seems to be inherent in the way that the rule is framed. Mr Thompson, appearing for Petrus, says that rule 4.70 (2) can be read as eliminating any mismatch. The chairman only makes a decision if he decides to admit or reject a proof under rule 4.70 (1). If he acts under rule 4.70 (3) he does not decide anything: he merely records an objection and doubt. That is why rule 4.70 (4) is itself split into two parts: the first part dealing with the reversal or variation of the chairman's decision (corresponding to a decision under rule 4.70 (1)); and the second dealing with invalidating a creditor's vote (corresponding with action under rule 4.70 (3)). There is undoubtedly force in this submission, although rule 4.70 (2) only permits an appeal against the chairman's decision. If his decision does not encompass action under rule 4.70 (3), it is difficult to see how an appeal can be mounted at all. No one argued for that conclusion.
13. Be that as it may, rule 4.70 (2) is the mechanism by which an objection to a proof may be tested. It is important to emphasise, however, that what is in issue at this stage is the validity of the proof for the purposes of voting; not the validity of the proof for the purposes of participating in a dividend. A subsequent meeting (or the liquidator) may take a different view of the validity of a proof.
14. Rule 4.70 (4) contemplates that on an appeal, the chairman's decision may be reversed or varied; or that a creditor's vote may be declared invalid. It is inherent in the scheme of the rule, as described by Harman J, that a creditor's vote may be declared invalid subsequent to the meeting without impugning the correctness of the chairman's decision at the time. This is what happened in Re a company (No 004539 of 1993) [1995] 1 BCLC 459 ("the Chelsea FC case") in which Blackburne J disallowed a creditor's vote while saying that in allowing the vote but marking the proof as objected to the chairman had acted "perfectly correctly". I think, therefore, that with all respect Gloster J was in error in Re Shruth Ltd [2006] 1 BCLC 294, 302 when she suggested that the question on appeal was whether the exercise of the chairman's discretion "was so flawed as to entitle this court to set aside his discretionary decision."
15. The fact that the court undertakes a more leisurely scrutiny of the claim of a creditor than is possible for the chairman in the course of a meeting also explains why, on an appeal against the chairman's decision, the court is not confined to the material that was before the chairman. As Blackburne J put it in the Chelsea FC case at 466:

"In my view, the task of the court, on an appeal under r 4.70(4) of the Insolvency Rules 1986, is simply to examine the evidence placed before it on the matter and come to a conclusion whether, on balance, the claim against the company is established and, if so, in what amount. I would only add that, in considering the matter, the court is not confined to the evidence that was before the chairman at the time that he made his decision but is entitled to consider whatever admissible evidence on the issue the parties to the appeal choose to place before the court."

16. In an appropriate case resolution of the issue may depend upon oral evidence and cross-examination: Re Assico Engineering Ltd [2002] BCC 481. It is, however, important to be clear on what "the issue" is. As Blackburne J pointed out, the issue is whether, on balance, the claim against the company is established, and, if so, in what amount. Necessarily, the question whether the claim against the company is established will be judged as at the date of the meeting at which the chairman made the impugned decision. Thus in Re Shruth Ltd [2006] 1 BCLC 294, 302 Gloster J was, in my respectful opinion, quite right in saying:

"I accept that a court can, on an appeal under r.4.70(4), look at all the evidence put before it, and is not confined to the evidence that was before the chairman of the meeting: see per Blackburne J in Re a company (No 004539 of 1993) [1995] 1 BCLC 459 at 466 and per Neuberger J in Re Philip Alexander Securities & Futures Ltd [1999] 1 BCLC 124 at 128. However, in both of those cases the court received evidence which showed what the position was, in fact, at the time of the meeting: in the first case that, as at the date of the meeting, the particular creditor's claim had been abandoned; in the second case, that, likewise, as at the date of the meeting, certain proxies had been lodged with the authority of certain creditors. In the present case, on the contrary, the evidence that subsequently a judgment was obtained clearly does not demonstrate that the claim was a liquidated claim at the time of the meeting."

17. In my judgment therefore, events subsequent to the meeting will not lead to an appeal against the chairman's decision being allowed.
18. Accordingly, were Mr Power's appeal to proceed, the primary question for decision would be whether Petrus was a creditor of the company at the date of the meeting, and if so, for what amount.
19. However, Mr Thompson concedes that for the purposes of deciding this appeal against Registrar Derrett's decision to strike out, I should assume that Petrus was not a creditor of the company; and that, therefore, it was not entitled to vote. I must assume, therefore, that the court would declare Petrus' vote to be invalid. However, as I have pointed out, that does not entail the conclusion that the chairman's decision was wrong.
20. Under rule 4.70 (4) if a creditor's vote is declared invalid the court may order that another meeting be summoned, or make such other order as it thinks just. Mr Doyle, appearing on this appeal for Mr Power, submitted that the "default position" was that a new meeting should be summoned; and that unless the result of a new meeting was a foregone conclusion, the default position should prevail. As David Richards J observed in giving permission to appeal, there is very little guidance in the authorities about the circumstances in which a new meeting should be summoned. The decision to exercise a discretionary power is often fact sensitive; so it is necessary to examine those cases in which judges have discussed the power.
21. The question arose in Re a Debtor (No 222 of 1990) ex p the Bank of Ireland [1992] BCLC 137. The creditors' meeting in that case had been called to approve an IVA proposed by Mr Crawley. Five companies alleged that they were creditors of Mr Crawley and submitted claims. The chairman of the meeting rejected their claims and refused to allow them to vote. The IVA was approved by the remaining creditors. All five would have voted against the approval of the IVA. Had they been allowed to vote, the IVA would have been defeated. Harman J decided that the chairman ought to have decided that there was a doubt about the claims; and ought to have marked the claims as "objected to" and allowed the creditors to vote. It does not appear to have been argued that Harman J ought to have decided for himself whether the creditors had made good their claims, rather than simply whether there was a doubt about them. Having decided that the creditors ought to have been allowed to vote, the question arose whether a new meeting should be summoned. Harman J quoted the rule in question in that case (rule 5.17 (7)) and continued at 146:

"In my view the position would prima facie be that one would expect the court in such a case to direct a further meeting. However, in this case that does not seem a useful course. On considering the voting figures, bearing in mind that the creditors who appear before me, all of whom by counsel, after consideration and with affidavits in support, express the clear view that they would vote against this arrangement if any further meeting was held, and remembering that Mr Talbot QC for the debtor expressly conceded that he does not wish a further meeting to be convened it seems to me unnecessary for me to order the summoning of a further meeting. In my judgment I should simply direct that the chairman's decision on the admission to voting of these five creditors be reversed and I should direct that the approval given by that meeting therefore should be revoked. I therefore go on to say that I will not make any direction to any person for the summoning of any further meeting."

22. Mr Doyle relies on the first quoted sentence as establishing the "default position". However, Harman J's observation must be seen in the context of a vote in which some of those entitled to vote were refused that right. Even so, Harman J decided that no new meeting needed to be called because that was not a "useful course". Instead he reversed both the chairman's decision and revoked approval of the IVA. Thus the approval of the IVA was revoked despite the fact that:

i) The votes in fact cast supported approval of the IVA; and

ii) Those creditors who were entitled to vote but who were refused that right had not cast their votes at all and would never cast their votes, either at the original meeting or at any new meeting.

23. The question also arose in the Chelsea FC case; and it is now necessary to refer to the facts of that case. Chelsea FC was in the course of being wound up when the Official Receiver decided that a creditors' meeting ought to be summoned in order to appoint a liquidator. One of those who wished to vote at the meeting was SB Property Co Ltd ("SBP") which had lodged a proof for £6.85 million. There were two candidates put forward as liquidator: Mr Morris and Mr Hilton. Some of the creditors challenged the validity of SBP's proof; but the chairman marked it as "objected to" and allowed SBP to vote for the entire amount of its proof. The vote then proceeded. Creditors with claims amounting to £7,032,734 (including SBP) voted for Mr Morris and creditors with claims amounting to £692,093 voted for Mr Hilton. On an appeal against the chairman's decision to allow SBP to vote, Blackburne J held that SBP had abandoned any claim that it had had; and consequently had not been entitled to vote at all. He thus declared that SBP's vote was invalid. The question then arose whether a new meeting should be summoned. If SBP's vote of £6.85 million were simply subtracted from the votes cast at the meeting, then Mr Hilton would have been appointed as liquidator rather than Mr Morris. In contrast to the Bank of Ireland case, this was a case where everyone who was entitled to vote had in fact voted, but in addition, votes had been cast by someone not entitled to vote.
24. The report [1995] 1 BCLC 459, 473 proceeds as follows:

"[His Lordship then heard further argument as to the form of the order. Mr Steinfeld, for the applicants, argued that there was no need for the court to order another creditors' meeting, since the result in the form of a vote for Mr Hilton, was a foregone conclusion, and accordingly there should simply be a declaration that Mr Hilton and not Mr Morris was duly appointed at the meeting on 5 May 1994. Mr Knowles for Mr Morris and Mr Todd for the official solicitor both opposed the retrospectivity of the order proposed by Mr Steinfeld, proposing instead that Mr Hilton should simply be appointed to succeed Mr Morris. Mr Knowles also sought to include an order in accordance with s 232 of the Companies Act 1985 that the acts of Mr Morris as liquidator from 5 May until the date Mr Hilton succeeded him should be treated as valid notwithstanding any defect to Mr Morris's appointment, and that his remuneration and expenses for that period should be paid in accordance with r 4.218 of the Insolvency Rules out of any assets recovered in the liquidation. Mr Steinfeld resisted those claims and asked for an order that Mr Morris pay the applicants' costs on the ground, inter alia, that he had gone beyond merely acting as a liquidator as defined in r 13.9 and so was not entitled to the exemption from liability for costs conferred by r 7.39.]

BLACKBURNE J.

I will make a declaration pursuant to r 4.70(4) of the Insolvency Rules 1986 that the vote of the second respondent (SB Property Co Ltd) at the meeting of creditors of the company on 5 May 1994 was invalid. I shall then make an order (1) that pursuant to r 4.70(4) of the Insolvency Rules 1986 Mr Hilton succeed Mr Morris as liquidator of the company on Mr Hilton's providing to the official receiver a written statement under r 4.100(2) of the Insolvency Rules 1986; (2) that pursuant to r 4.70(4) of the Insolvency Rules 1986 and for the avoidance of doubt in accordance with s 232 of the Insolvency Act 1986 the acts of Mr Morris as liquidator of the company from 5 May 1994 to the date of Mr Hilton's succeeding Mr Morris as liquidator are valid notwithstanding any defect in Mr Morris's appointment; (3) that pursuant to r 4.70(4) of the Insolvency Rules 1986 the expenses properly incurred by and the remuneration of Mr Morris from 5 May 1994 to the date of Mr Hilton's succeeding Mr Morris as liquidator are to be paid out of the assets of the company in accordance with and with the priorities established by r 4.218 of the Insolvency Rules 1986 as the expenses and remuneration of a liquidator."

25. Mr Doyle submits that this is the origin of the "foregone conclusion" test. It will be observed, however, that the phrase "foregone conclusion" was counsel's submission, and that none of the other counsel argued for any different test. Moreover, Blackburne J himself did not use that phrase. In my judgment that is too slender a foundation for the supposed test.
26. In my judgment much will depend on the question on which the vote has been taken. In the present case there was only one question for decision at the meeting: who was to be appointed as liquidator? There were only two candidates, so that the issue was clear-cut. In other cases the matters for decision may be more complex: for example a proposed IVA may be the subject of amendments proposed by creditors, and different creditors might vote in different ways, depending on who is entitled to vote on (and hence will be bound by) the IVA. The court must also, I think, be mindful that the summoning of a new meeting is likely to involve expense both for creditors, and also for the office holder whose fees will be paid in priority to any dividend for creditors. Where insolvency is involved, the court should be concerned to minimise the costs involved.
27. There may also be a difference in approach in a case in which the chairman has refused to allow a creditor to vote for his full entitlement (either because he has rejected the proof or because he has only admitted it in part) and a case in which a creditor has been allowed to vote, but his vote is subsequently declared invalid. In the former case, a person with an entitlement to vote has not been permitted to cast his vote either in its full amount or at all. In such a case, the principle of creditor democracy may lead the court to re-run the meeting, so that all those who are entitled to vote have that opportunity. If the court were to decline to order a new meeting, it would be making a decision on a subject where the rules give the decision making power to the creditors. A creditors' meeting would thus be treated as having made a decision which it had not made at all. In such a case, Harman J may well be right in saying that prima facie the court would order a new meeting, and that there must be something in the evidence to displace that default position. In the latter case, however, all those entitled to vote will have cast their votes, as well as some who were not; and the outcome of the meeting can readily be deduced by eliminating any vote that is subsequently declared to have been invalid. I do not consider that in the latter case, therefore, there is a default position pointing towards the summoning of another meeting. If anything, at least in a case where there was only one clear-cut issue before the meeting, it seems to me that the default position is that no new meeting should be summoned. The elimination of invalid votes on a scrutiny of a ballot following a contested election is a process well-known to the law. This entails a re-count; but it does not entail a re-run.
28. On the facts of the present case, even if Petrus' vote is eliminated entirely, the outcome of the meeting would not have been affected. In my judgment that is a strong reason for not summoning a new meeting. In his first statement Mr Power said that it was his belief that if the vote of Petrus had been disallowed, then the decision of the meeting would have been different. That assertion is manifestly wrong, as simple arithmetic shows. Thus the basis on which Mr Power supported his application is manifestly without foundation. There is one further consideration which also militates strongly against summoning a new meeting. As stated, Mr Power's purpose, described in his fourth witness statement, in seeking to summon a new meeting is to seek to persuade creditors (among whom he now numbers himself) to appoint a liquidator of his own choice.
29. In Fielding v Seery [2004] BCC 315 HH Judge Maddocks, sitting as a judge of the High Court, set out a number of principles that governed the choice of liquidator. Among those principles were the following at 322:

"(4) A liquidator should not be a person nor be the choice of a person who has a duty or purpose which conflicts with the duties of the liquidator. There are many illustrations of this principle. I was referred in particular to Re City & County Investment Co (1877) 25 WR 342, Re Charterland Goldfields (1909) 26 TLR 132, and Re Corbenstoke (No. 2) (1989) 5 BCC 767.

(5) More specifically the liquidator should not be the nominee of a person: (a) against whom the company has hostile or conflicting claims as in Re City & County Investment Co, (and see also Deloitte & Touche AG v Johnson [1999] BCC 992; [1999] 1 WLR 1605); or (b) whose conduct in relation to the affairs of the company is under investigation as in Re Charterland Goldfields (and Re Mansel, ex parte Sayer).

(6) By contrast it is not an objection to a liquidator that he is allied to or the choice of a person who is concerned to pursue the claims of the company through the liquidator."

30. Mr Doyle did not challenge these principles.
31. In the present case Mr Power has a purpose that conflicts with the duties of the liquidator, namely to minimise both his own liabilities for the debts of the company and also to defend his own conduct vis-à-vis the company. In addition he is a person against whom the company has hostile claims; and is also a person whose conduct in relation to the affairs of the company is under investigation. It would therefore be wrong if the liquidator were to be a person chosen by Mr Power.
32. It follows, in my judgment, that both because the outcome of the meeting would not have changed even if Petrus' vote is entirely eliminated, and also because it would be wrong for a new liquidator of Mr Power's choice to be appointed, there is no real prospect of the court ordering a new meeting to be summoned. Accordingly, I consider that Registrar Derrett was entitled to strike out the application as serving no useful purpose, and as having no real prospect of success.
33. Finally, I should record that it was not suggested in argument on this appeal that Mr Power was legally precluded from appealing against the chairman's decision in his capacity as creditor or contributory of the company, merely because he himself was the chairman. I think that this is right. As stated, the chairman's function at the meeting is to make a quick decision; and any benefit of the doubt is given to the claimant creditor. More leisurely reflection, even by the chairman himself, might lead him to conclude that, contrary to his first impression at the meeting, there is in fact no debt owing to the claimant and that his proof ought to have been rejected. I see no reason why in those circumstances, he should not appeal, especially since rule 4.70 (2) itself gives a right of appeal to "any" creditor or contributory. In addition, if the chairman were to act under rule 4.70 (3), he is not really deciding anything at all. He is merely recording doubt whether a proof should be admitted or rejected. So this is not analogous to a case of a person appealing against his own decision. Mr Thompson submitted that although, in theory, the chairman of the meeting (if himself a creditor or contributory) had the right of appeal, Mr Power did not have that right on the facts of this particular case. However, in view of my decision on the substantive merits of the appeal, I need not enter into that question.
34. In the result, I dismiss the appeal.