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Elle Macpherson wins insolvency case 7 December 2010

The Isle of Man High Court delivered a verdict on her case this week that could set a new precedent for common law jurisdictions in disputes over mortgage deposits. The case centred on a mortgage taken out by Macpherson in 2006 to buy a home in London.

She established an Isle of Man-registered nominee company so she could buy the house without having to reveal her personal address via the Land Registry. Macpherson had also personally deposited with Kaupthing Singer and Friedlander (KSF).

On deciding to sell the house in September 2009, Macpherson tried to offset the amount she had personally deposited with KSF, against the money that her nominee company still owed KSF for the mortgage.

KSF’s liquidators, PricerwaterhouseCoopers, turned down the ‘set off’ because whilst the deposit was held in her own name, the mortgage borrower was a company, despite being owned by Macpherson.

Macpherson took the liquidators to court. Her legal counsel, Speechly Bircham, Moroneys and John McDonnell QC drew on historic legal structures, including the Statute of Anne and Australian case law, to argue that her nominee company and Macpherson were ‘in-equity’ one and the same. The court supported this case.

In practical terms, the ruling could create a new precedent for common law courts and allow individuals to ‘set off’ such debts.

Charles Gothard, Speechly Bircham’s head of international tax and trusts, said: "At a time when bank insolvencies are on the rise, we are grateful that we have been able to shed new light on this and show individuals they have more options than they may have thought.

"Miss Macpherson’s case highlights the importance of looking beyond statutory and dry legal rights, to the intentions and equities that underpin relationships with banks, particularly where there are complicated connections between lenders, individuals and the companies they control," he added.



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