Ltd proposal to strike off - pursuing sole member Director, no goods & he has the money

[pizzadude]

Good evening all,

 

I would be grateful for any advice that may be offered for the following case that I am pursuing through the Small Claims court. I have changed the exact dates, but the rest of the details are accurate:

 

On 15 November 2013, I found a website offering for sale some consumer electronics. It was a computer peripheral (offered as a kit or fully assembled) that would enable me to expand my fledgling prototyping business. After many calls and emails with the Company Director, I went ahead with ordering an assembled and calibrated unit for the sum of £1000.00 (including courier delivery).

 

The sale was agreed specifically for an assembled and calibrated unit, to be delivered within 10days.

 

The director emailed after 11 days to state that he was waiting for parts and that I should receive the unit soon.

 

Queue excuse again a few days later, but the Director offers to deliver the unit to me personally.

 

After much chasing, a tracking number is received, but no goods. On querying with the Couriers, they state that the goods were never collected because no-one was ever found at the collection address.

 

Repeat this cycle for approximately 6 months, at which point I contact Solicitors for advice. They do a search and advise me that CompanyA has been dissolved on the 22 June 2014 (effective 15/06/2014). No legal recourse as there is no legal entity to pursue. News to me.

 

I complain to Companies House (CH), but am told that I had 3months to object to the Dissolution and that's that. They advise to continue communicating in the hope that the goods will arrive.

 

The Director keeps up the promises and the goods never arrive. A request is submitted for delivery of the goods or full refund of the purchase price. This is ignored. The Director eventually ignores my emails and phone calls.

 

The Director randomly emails me with another false Tracking Number in September 2014, to which I respond that I know he is making false statements and that I have reported him to the authorities. He replies to say 'sorry to hear but understandable. Machine will be sent soon'.

 

I complain to Trading Standards (TS) and the Police Fraud squad (AF) and am advised that although I have no legal recourse, I should still pursue the matter by persisting in asking where the goods are/when they will arrive. AF advises that I should not under any circumstances give this individual any more money if he gets back in touch.

 

Following the dissolution of CompanyA, I go back to his website where I find he is offering the same goods and services, but now under CompanyB. The terms and conditions on the website are still listed as CompanyA. I get back in touch with TS and AF and complain again, also contacting CH to report what I believe was Phoenix Company action. No further action by CH as he applied for Voluntary Dissolution.

 

No further communication with the Director is received until February 2015 when he comes back on the scene, apologising and saying that's it's been all a big mix up and that CompanyB is now responsible for delivering the order. Again, news to me. I consider that maybe he is serious following the AF/TS complaints and is going to deliver the goods.

 

On reading back through the correspondence, he does state that it is his intention to close the company 'within the next three months', but not that he has already filed the application. In hindsight, it is clearly his intent to close the company before he even resumes contact. Further, he states in a later email, that only those who have opted to NOT receive a machine would have received a copy of the DS01. Alarm bells ring and on checking, I find that he has an active application for dissolution. I am just in time to register an objection which is upheld.

 

I notify the Director of my objection and continue to appeal to him for mediation, compromise... a solution. He repeatedly requests to discuss things over the phone and after a few weeks of waffle, I decline further contact by phone. I challenge him with regards to the DS01 and he emails a copy through, stating that he has never hidden this from me and that I should have received one in the post. No proof is provided, no communication is received from this Director or his Companies by post. Ever.

 

I make him aware that I am contemplating legal action. His response is that CompanyB is ONLY fulfilling the orders.

 

When I challenge his handling of the situation, his response is to ask if I want to invest £3000.00 in his business. I ignore this.

 

A 'Notice Before Action' (NBA) is issued to his business address and home address. The home address one is signed for, the business address one is returned a month later, uncollected. He acknowledges receipt of the Notice.

 

He misses the deadline to respond to the NBA. He later offers that funds are low, so he would not challenge legal action. He also asks that, given my history, would I be interested in an investment opportunity?

 

I lodge a further complaint with the Director, who ignores the complaint and instead offers 49% of his business for £5000.00 and states he would then be able to issue my refund. (?) I again complain to CH.

 

After objecting to dissolution for 6+ months, I progress to legal action. On legal advice, the Solicitor questions the ProForma, the only document I have with an order number on it. I question if it is acceptable proof of purchase and he agrees that it is. It is unclear who the liability for the ProForma is with - I assume it is with the Company.

 

Solicitor advises naming Director and Company jointly, which I do.

 

On investigation since submitting the Claim:

 

The Director is sole member and sole Director of Companies A, B and C. (You cannot deal with anyone else in the company other than him: He is a one man band.)

I find that the Director's DOB on the Certificates of Incorporation are listed differently between CompanyA and CompanyB.

CompanyC is registered with incorrect Director's contact details. Director is later removed and reinstated with contact details for CompanyB's business address.

CompanyB and C share the same trading address. The Director alleges that CompanyB and the unit are closed, but on investigation, I am told that the named unit is occupied with an active lease and no notice of termination.

CompanyA's application for Dissolution was dated 3 months and two days after I sent the payment (17/02/14 and 15/11/13 resp). Granted he has not (to my knowledge) traded within that 3 month period prior to the application - I question whether there is an indication, seeing as how there were 2 days between sending the money and making the decision to no longer trade; that there was an intent to take the money without ever fulfilling the order. This would seem to be corroborated by not being notified of the Dissolution of CompanyA.

 

CompanyA and the Director are repeatedly named in a user forum specific to this industry that I recently find. There are numerous complaints almost identical to my own. It appears that previous legal action has been settled in mediation with questionable/pitiful results.

 

No accounts have been submitted for any Company. Only one return is ever filed for CompanyA, and all documents show as Outstanding (that's not for performance) with CH. As all have been/ are being Voluntarily Dissolved, CH will not take further action, even in light of his failure to notify Creditors and suspicions of sharp practice. These are stated offences in the Companies Act 2006.

 

The Solictor's reaction to the ProForma bugs me. There is a logo that states CompanyA, but the only mention of LTD is under his name as Director of CompanyA Ltd. There is no inclusion of the Company Number and no VAT details. The office address is both the Company's address and the Director's home address. No invoice or receipt is ever received from CompanyA. I only have email confirmation that the Director received the money. Is the ProForma proof of an agreement between the company and myself, or the Director and myself?

 

I call HMRC for clarification, they advise that the ProForma I originally received is not a recognised Invoice. It is considered to be a quote for goods and services. They cannot comment on whether the agreement is with the individual or the company.

CH advise they cannot comment on the legality of the document, but based on my continued evidence and pending court case, the objections are being upheld pending Judgement.

 

Director contacts me to complain that I have named him personally as a Defendant. I ask him who received the original payment. He does not respond.

 

The Director has just defended the claim against himself, but nothing has been received for the company.

 

Default Judgement has been removed now that his defense has been submitted.

 

His defense is that the order is with the Company and that I already know this as I am objecting to it's Dissolution with CH. He states that he has sent me the DS01, (which he did, but only after I demanded a copy of it (and months after the application was submitted)).

 

Whilst I have continually tried to be reasonable, his persistent evasion of any credible information leads me to believe that he is either incompetent or blatantly defrauding his customers. I only have his word that the goods exist and that the agreement is with the Company. As you can imagine, after 2 years+ of outright deceit, I am very suspicious of anything he states.

 

I believe that I am waiting for a question pack from MCOL in order to progress to Judgement, but am concerned that the debt is going to be lumped on the Company and he'll close it without paying.

 

Actually, I think it's obvious that he has been trading whilst insolvent, but I do not know what further powers (as a Creditor) I have to prove/charge him as personally liable.

 

Was I wrong to name him as a Defendant in the first place?

 

The claim covers the basic facts, but I am concerned because of the preconceived response to Director's liability in these situations.

 

I don't want to waste the Court's time, but I do want to submit as much documentary evidence as possible for the Judgement. Is anyone able to offer any further advice?

 

Many thanks in advance for your help.

[BazzaS]

Do you think the director has assets you could recover against? Had he got existing CCJ's outstanding, unsatisfied??

There is no point in going after him personally if you will "win, but never recover funds" : it would be a hollow victory.

 

If you could recover funds:

County court claim, small claims track.

Name both Company A, and the director personally.

You won't recover against CompanyA but you then want to show why you should be able to pursue him personally.

 

Your grounds for this are:

a) that you never knew you were contracting with a limited company

b) that even had you been dealing with a limited company his actions allow you to "pierce the corporate veil" as he was fraudulently trading (to the detriment of the creditors of A)

Part of your evidence of this is the email from September 2014

 

"The Director randomly emails me with another false Tracking Number in September 2014," where you note he is either confirming that he was acting as a director of CompanyA after it was liquidated in June 2014, or that he wasn't acting as a Director of Company A, but as an individual.

[pizzadude]

Thanks for the reply Bazza.

 

I tried this direction when obtaining legal advice, but was put off naming CompanyA as he had subsequently offered that CompanyB was now responsible for the order.

 

As the incorporation and dissolution dates of CompanyA and CompanyB overlap, it is unclear on who's behalf he is acting during that period. By September 2014 though, CompanyA is dissolved and no longer exists. I do not find out about this supposed link to CompanyB until March 2015.

 

Unfortunately CompanyB and the individual have already been named as joint defendants.

 

It is unknown whether he or his company has assets to recover the debt, but is believed so. No financial information on the health of the company can be publicly obtained (that I know of) as accounts and annual returns are overdue. I suspect that he has not kept accounts, but that is conjecture at this point.

 

I find your second point about trading to the detriment of Creditors very interesting. I'm not sure how to raise that at this stage though - unless the questionnaire allows for evidence etc... to be attached.

[BazzaS]

CompanyB and CompanyA are 2 separate legal entities.

They may share a director, but unless Company B took over Company A's business and its shares as a going concern) and thus its assets & its liabilities), Company B is a "red herring".

If Company B only purchased Company A's assets (or by coincidence shares premises and a director!), then Company B had no requirement to take on liability to you.

 

He may try to claim Company B took on liability. You argue that this is irrelevant as they have no obligation to do so, he is confusing his responsibility as a director of one with his responsibility to the other, the order remains unfulfilled / un-refunded, and his actions allow you to pierce the "corporate veil" for both companies : so he is still personally liable (and can't hide behind opening & closing companies, shuffling responsibilities between them, which might be valid if done correctly - but

a) his inability to identify CompanyA as a limited company while trading

b) his failure to file documents for Company A

c) his failure to file for Company B

Shouldn't allow him to evade a just outcome : achieved by making him personally liable)

[pizzadude]

Thanks again Bazza, I appreciate you taking the time to assist me in

[pizzadude]

...this matter. (My phone decided to post while I was typing...)

 

I agree with your comments and will see how I can apply them to the case. I believe I am waiting to receive a Direction Questionnaire (?) for the claim to progress, so will hopefully raise the argument/evidence at that point.

 

Kind regards

[steampowered]

The claim covers the basic facts, but I am concerned because of the preconceived response to Director's liability in these situations.

It isn't possible to claim against company A because company A has been struck off. You can't claim against a company which has been dissolved (unless you have that company restored to the register, but that would be a pain and is pretty pointless).

 

It doesn't sound like your claim against company B would be successful, as it sounds like you entered into a contract with company A and paid company A.

 

Typically, the director of a company will not be liable for contracts entered into by the company. However, directors can be personally liable if they are found to have acted fraudulently. The director will be found to have acted fraudulently if you can convince the judge that the director knew the product would never be delivered at the time he asked you to pay the £1000.

 

The Solictor's reaction to the ProForma bugs me. There is a logo that states CompanyA, but the only mention of LTD is under his name as Director of CompanyA Ltd. There is no inclusion of the Company Number and no VAT details. The office address is both the Company's address and the Director's home address. No invoice or receipt is ever received from Company A. I only have email confirmation that the Director received the money. Is the ProForma proof of an agreement between the company and myself, or the Director and myself?

I call HMRC for clarification, they advise that the ProForma I originally received is not a recognised Invoice. It is considered to be a quote for goods and services. They cannot comment on whether the agreement is with the individual or the company.

CH advise they cannot comment on the legality of the document, but based on my continued evidence and pending court case, the objections are being upheld pending Judgement.

You shouldn't worry about this. There are no formalities required in order to have a legally valid invoice or contract. In fact it is perfectly possible to have a legally binding contract verbally. If the document you have is evidence which proves that this company agreed to sell this product to you for £1,000 then that is enough to demonstrate the existence of a contract.

 

It may well be true that the invoice did not contain company details / tax details, but that isn't really relevant. Failure to comply with these formalities could give rise to minor penalties under the Companies Act or cause company A tax issues, but that has nothing to do with you and has no bearing on whether or not you have a valid contract with the company. The company was probably below the turnover threshold needed to register for VAT anyway.

 

I don't want to waste the Court's time, but I do want to submit as much documentary evidence as possible for the Judgement. Is anyone able to offer any further advice?

If you need further advice, it would be best to either post up a scan of the particulars of claim and defence (remove any personal details first) or type out the key bits.

 

I believe I am waiting to receive a Direction Questionnaire (?) for the claim to progress, so will hopefully raise the argument/evidence at that point.

The DQ is not an opportunity to submit evidence. You are able to submit further evidence in a witness statement (which comes later - at the time you submit your evidence, which is typically shortly before the hearing).

 

However, while you can submit evidence later, you are not supposed to be raising new arguments. The arguments you are raising are supposed to go in the particulars of claim. If you want to raise completely new arguments, you may need to make an application to amend your particulars of claim.

[pizzadude]

Thanks Steampowered,

 

I will provide details of the claim and defense a little later when I get home from work.

 

The sales agreement and payment were originally with CompanyA. As stated, I was not even aware that CompanyB was on the scene until 13/14 months later.

 

I'm now also surprised that CH upheld my objections to the dissolution of CompanyB - but there was trouble initially lodging the complaint because of the CompanyA/CompanyB liability. In the end, I submitted the Director's own communications as evidence against him. It now appears that they were probably right to question my right to object...

 

The latest objection is being upheld pending the outcome of the Claim.

 

CH have consistently stated that they are an administrative body and can only act of the information provided to them. Interpret that as you will.

 

I'll upload that information just after lunch.

 

Many thanks

 

As discussed earlier, the details of the Claim are as follows:

 

##

I am claiming the purchase cost of a computer peripheral which was never delivered. The Director has offered personal assurances and guarantees of delivery, but nothing has materialised. Director has attempted to evade Creditors by closing and opening Companies, but has admitted owing the debt. I have attempted resolution on multiple occasions, but he fails to engage. Refund has been requested multiple times. Director accepts personal liability. A 'Notice Before Action' has been served. I have successfully Objected to the Dissolution of the current Company multiple times, due to the outstanding debt. I believe that 2 years is an excessive period to be owed goods/refund that remain unfulfilled. This debt needs to be settled.

 

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 17/12/2013 to 22/12/2015 on £1,000.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.22.

##

 

Defendant 1 (the Individual's) response:

 

##

I dispute the claim as the machine was provided by CompanyA Ltd

which whose orders were taken over by CompanyB Ltd, which

is the co-defendant.

I believe that the claimant knows that the claim is with CompanyB Ltd.

 

Also the claimant had been notified that the company was being

dissovled by letter which was followed up with an email copy.

 

This notification enabled him to halt the action to dissolve.

##

 

Defendant 2 (the Company's) response:

 

##

-

##

 

The amendments are in blue text.

 

I will contest that he ever notified me of anything to do with the company(ies) by letter. To be clear, absolutely nothing has ever been received by post and the copy of the DS01 for CompanyB was only provided after I demanded a copy (months after filing).

 

I demanded a copy of the DS01 naively believing that it would force him into action. In hindsight, he had not responded to the 'Notice Before Action' or Refund requests, so it was a bit foolish to think that that would prompt him to act. Anyway, I could have just printed a copy of the DS01 off of the CH website.

 

The main point is, he has not notified his intent to dissolve either company by providing a copy of the DS01 to his Creditors (as it states on the form, this is an offence).

 

He has not filed accounts for either company (which is also an offence).

 

He has not submitted an Annual return for CompanyB (which is an offence) and CompanyA was dissolved with an outstanding notice to file an annual return (first year filed, but nothing thereafter).

 

CompanyA held 1000 shares at £1 each

CompanyB holds 100 shares at £0.01 each

 

The Director has previously stated: "CompanyB only took on the completion of the orders from CompanyA". He appears to reiterate this in his defense "the machine was provided by CompanyA Ltd

which whose orders were taken over by CompanyB Ltd"

 

It seems that CompanyB has not then taken over CompanyA's shares as a going concern. I assume that the filed company accounts would normally be used to prove that this is indeed the case?

 

So I filed the Claim naming CompanyB and the Director jointly as, again, I took the word of the Director that CompanyB was legally responsible for the fulfillment of the order. If this is not the case (as it seems), I will probably not be successful against CompanyB (which is ok, because I believe he is/has traded whilst insolvent and has applied for Voluntary Dissolution so that he doesn't get caught out). I would probably have to have bailiffs enforce any Judgement anyway - I would suspect that the equipment and machinery would just be left on site whilst he defrauds anyone else through CompanyC.

 

Where does that leave me though in relation to my original problem of dropping liability on the Director?

[steampowered]

You haven't posted the defence from Defendant 2 (i.e. Company B). But to be honest I don't see how the claim against company B could stand up if this ends up before a judge.

 

It is not possible for company A to simply transfer its contractual obligation to deliver a piece of machinery to company B. Legally, the transfer of obligations is known as a 'novation'. This requires the consent of the creditor. Otherwise, it would be possible for anyone to avoid all of their contractual obligations by simply shifting them into a shell company. If you didn't provide consent to the movement of your order from company A to company B, then the obligation to deliver the product remained with company A.

 

The only way in which company B would be liable here is if either (1) you consented to the transfer of contractual obligations from company A to company B, or (2) you entered into a separate contract with company B. It doesn't sound like either of those two options would apply in this case.

 

There are only two circumstances in which I think the director could be personally liable to you. The first circumstance would be fraud - i.e. if he committed what is known as the tort of deceit. This would require the director to have said something to you, which he knew to be untrue, at the time or before you entered into the contract with Company A. The second circumstance would be where he has engaged in a transaction defrauding creditors contrary to s243 of the Insolvency Act 1986 (you can simply google for the Act and read section 243 if you want to know exactly what the law is on this). This would allow you to ask the court to make him personally liable if you can convince the judge that he has tried to defraud you as a creditor of company A (for example, by moving assets from company A to company B without paying creditors).

 

I'm sure he has committed all sorts of offences under both the Insolvency Act and the Companies Act in relation to the manner in which the closing of company A was conducted, but as a member of the public you do not have the ability to enforce this sort of thing (most of the rights under the insolvency act to challenge wrongful trading and the like are only available to liquidators/administrators who are professional insolvency practitioners).

 

Hopefully this gives you some pointers as to the kind of things you would need to raise with the judge at the hearing.

[pizzadude]

Thanks again Steampowered, very useful information.

 

For the Insolvency Act references, did you mean s423 or s212?

 

There was no defense submitted for Defendant 2 (CompanyB) and according to the MCOL advice line, I may therefore request Default Judgement against Defendant 2.

 

I agree with you and Bazza though, that contrary to the assertion made by the Director, CompanyB has no liability to me, as no contract was ever formed between us.

 

I am concentrating on Defendant 1 (the Individual) to hopefully prove that he had clear intent to defraud.

 

The original communication and ProForma confirm that the sales agreement was based on the assembled and calibrated peripheral being received by a set date. This date was agreed based on the fact that the parts were all in stock and the Director had but to assemble and calibrate it. By that logic, if the case is that the parts or machines were not in stock, the Director has made a misrepresentation of the facts in order to make gain. (Fraud Act 2006, Chapter 35, Section 2 (1) (a and b) and (2) and Section (4); Supplementary, Section 12)

 

I might be able to make the same argument under Part 29, Section 993 of the Companies Act 2006:

'The term “fraudulent purpose” denotes an intention to go “beyond the bounds of what ordinary decent people engaged in business would regard as honest, or “involving, according to the current notions of fair trading among commercial men, real moral blame”.' http://www.saunders.co.uk/our-work/fraud/fraudulent-trading-2/

 

He has already committed an offense by dissolving CompanyA without notifying Creditors. I have just read that the terms for applying for Voluntary Dissolution require the Company to be solvent. "Where a company has not discharged all its debts or is insolvent when it is struck off, it may be returned to the Register. The directors may be held personally accountable to its creditors." (http://www.rossmartin.co.uk/companies/ceasing-trading/132-ceasing-trading-overview)

 

CompanyA's debt were not discharged and the Director, by sharp practice, has removed the ability of Creditors to pursue legal recourse to recover any funds owed. I would allege that this was done intentionally and would therefore constitute an act of Fraud.

According to the Director, it seems that stock availability is/was not the issue (though he also alleges that it is...?), but by inference, his lack of ability to act upon his obligation to fulfill the sales agreement is.

 

The Director currently states that CompanyB retained the stock from CompanyA. He alleges that this is to fulfill outstanding orders, but this act would effectively be "putting assets beyond the reach of a person who is making, or may at some time make, a claim against him" (Insolvency Act 1986 Part XVI, Section 423 Transactions Defrauding Creditors) as those assets would have been wrongly removed from CompanyA, if it meant that CompanyA was then unable to fulfill it's obligations to it's Creditors.

If he has not filed with CH, I wonder if he is able to produce (or even if he kept) any accounts? There must be a way to compel him to produce them; and if he cannot, make an allegation that the Director made a misrepresentation on the DS01. If he did not keep accounts, how was he able to determine that the Company was solvent? Surely, by dissolving the Company he was again "putting assets beyond the reach of a person who ...may ...make, a claim against him"

Under Chapter II, Voluntary Winding Up, Section 89 (4) of the Insolvency Act 1986, "A director making a declaration under this section without having reasonable grounds for the opinion that the company will be able to pay its debts in full, together with interest at the official rate, within the period specified is liable to imprisonment or a fine, or both."

 

The Insolvency Act 1986, makes provision under Part IV, Chapter X, s212 'Penalisation of directors and officers' for Creditors apply for the Court to examine into the conduct of the person falling within subsection (1) and compel him (a) to repay, restore or account for the money or property ... with interest at such rate as the court thinks just.

 

The whole 'offer of investment' malarky has really ticked me off. I am trying to find the reference where it states that no monetary transaction has to take place for a charge of fraud to be alleged. (a wikipedia link is the best I can manage right now: https://en.wikipedia.org/wiki/Fraud_Act_2006). "An important difference between this and the Theft Act is that the Fraud Act offences do not require there to have been a victim"

[BazzaS]

I think you are reading too much into "An important difference between this and the Theft Act is that the Fraud Act offences do not require there to have been a victim"

 

It is true that fraud by false representation doesn't require the fraud to succeed : only the risk of the victim making a loss, or the perpetrator making a gain.

However, that is a criminal offence, and would be a trial in a criminal court to the criminal standard of proof ("beyond all reasonable doubt").

 

You are aiming to establish "fraudulent trading" in a civil claim, trial in a civil court, where you only need to show it "on balance of probabilities" (>50%)

 

Don't get sidetracked by the two sounding similar. The risk is you'll tie yourself in knots confusing the two, their respective courts & standards of proof.

[pizzadude]

Fair point Bazza, thanks for clarifying that.

 

It is difficult to try and keep emotions out of the equation - just reading back through all the email correspondence has been winding me up.

 

The main focus is, as you state, to establish reasonable grounds that he was fraudulently trading and shift the onus of liability onto him.

[steampowered]

For the Insolvency Act references, did you mean s423 or s212?

s423 is the one which is most relevant to you.

 

s423 bites on debt avoidance (i.e. transactions defrauding creditors). You'd want to look at saying that the transfer of business from company A to company B was done in a fraudulent manner to circumvent your rights as a creditor of Company A. In particular, the fact that the DS01 clearly indicates on the face of the form that it is an offence not to notify creditors, and yet you were not notified.

 

s212 is not relevant because it relates to the winding up of a company. Winding up is an insolvency process. Company A did not go through that process, it was simply struck off the companies register. In order to have use this section you would need to have company A placed back on the register and then make an application to court for it to be properly wound up.

 

There was no defense submitted for Defendant 2 (CompanyB) and according to the MCOL advice line, I may therefore request Default Judgement against Defendant 2.

You might as well get default judgment then. Does Company B have any assets you could enforce against? It sounds unlikely but is worth checking.

 

The original communication and ProForma confirm that the sales agreement was based on the assembled and calibrated peripheral being received by a set date. This date was agreed based on the fact that the parts were all in stock and the Director had but to assemble and calibrate it. By that logic, if the case is that the parts or machines were not in stock, the Director has made a misrepresentation of the facts in order to make gain. (Fraud Act 2006, Chapter 35, Section 2 (1) (a and b) and (2) and Section (4); Supplementary, Section 12)

The thrust of the point you are making here is spot on. However the Fraud Act 2006 is not the right law. The Fraud Act deals with criminal fraud. In this case you are bringing a claim in a civil court.

 

Civil fraud is similar but is not codified in an Act. It is also known as the 'tort of deceit' or 'fraudulent mistatement' - see https://en.wikipedia.org/wiki/Tort_of_deceit. I wouldn't get too bogged down in the law here - the most important thing is to demonstrate that this director has conducted himself in a dishonest manner.

 

I might be able to make the same argument under Part 29, Section 993 of the Companies Act 2006:

'The term “fraudulent purpose” denotes an intention to go “beyond the bounds of what ordinary decent people engaged in business would regard as honest, or “involving, according to the current notions of fair trading among commercial men, real moral blame”.' http://www.saunders.co.uk/our-work/fraud/fraudulent-trading-2/

Again, this relates to a criminal offence and would only be relevant if this person was being prosecuted by the state in a criminal court.

 

The Director currently states that CompanyB retained the stock from CompanyA. He alleges that this is to fulfill outstanding orders, but this act would effectively be "putting assets beyond the reach of a person who is making, or may at some time make, a claim against him" (Insolvency Act 1986 Part XVI, Section 423 Transactions Defrauding Creditors) as those assets would have been wrongly removed from CompanyA, if it meant that CompanyA was then unable to fulfill it's obligations to it's Creditors.

The fundamental point is that transfer of stock from company A to company B, without paying creditors, is a fraudulent transfer at an undervalue if done to defraud creditors.

[pizzadude]

Thanks again to you both for guiding me here.

 

I did not fully appreciate the distinction between the two courts before. I am going to tie myself in knots if I start trying to quote applicable law, so I'll draft the facts and statement based on the information I've discussed with you.

 

Kind regards

[steampowered]

Yes, I think that's the right thing to do.