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Ezekiel -v- Orakpo

Ezekiel -v- Orakpo

Postby dls » Wed Mar 04, 2015 11:22 am

Ezekiel -v- Orakpo - CA - 1977 - Shaw LJ ([1977] QB 260) - Landlord and Tenant - Insolvency
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected the tenant's contention on the ground that the claim for possession was not a remedy against the tenant's property. Shaw LJ:
"It is clear that the section intends to inhibit any form of remedy or action which is directly designed to enforce payment of the debt which is owed. What has first to be considered is whether an action in which an order for possession is sought where a lease has been forfeited for default in payment of rent, comes within the terms of s.7(1) at all. If it does not, it is not necessary to get the leave of the court under s.7 before commencing such an action. In our view, an action for possession following the forfeiture of a lease is not within the terms of the section, and this is so whatever the ground of forfeiture to which the lessor has recourse under the covenants in the lease. The nature of the action is the same in every case, namely, that the right and interest of the lessee to possession has been terminated before its natural expiry in pursuance of a contractual provision in his lease so that he become a trespasser if he continues in occupation of the premises. The obverse of this situation is that the lessor becomes entitled to possession on forfeiture of the lessee's interest. The action for re-entry is in the nature of an action in trespass. It is not a remedy against the property of the debtor in respect of a debt, notwithstanding that the occasion of the forfeiture is default in payment of the rent reserved by the lease. The consequence of forfeiture (subject to the power of the court to grant relief) is to determine the lessee's interest. It is not a remedy enforcing payment of the rent due and it is not within the ambit of s.7(1)."
Bankruptcy Act 1914 s. 7

Cited by:
Ezekiel -v- Orakpo CA 16-9-1996 (Times 16-Sep-96, [1997] 1 WLR 340) - See Also
Harlow District Council -v- Hall CA 28-2-2006 (Bailii, [2006] EWCA Civ 156, Times 15-Mar-06, [2006] 1 WLR 2116, [2006] BPIR 712, [2006] HLR 27, [2006] 2 P & CR 16)
Ezekiel -v- Orakpo ChD 4-11-1994 (Independent 23-Nov-94, Times 08-Nov-94) - See Also
Boscawen and Others -v- Bajwa and Others; Abbey National Plc -v- Boscawen and Others CA 10-4-1995 (Gazette 01-Jun-95, Independent 23-May-95, Times 25-Apr-95, [1996] 1 WLR 328, Bailii, [1995] EWCA Civ 15)
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