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Further to Robert Stevens' message re the lack of authority on IA 1986 s 339, I would add that there is some case-law and writing on the analogous sections relating to corporate insolvencies, ss 239-241:

1/ In his enlightening SPTL paper/CfiLR article/chapter in the Restitution and Insolvency book, 'The Recovery of Voidable Preferences: Aspects of Restoration', Andrew Keay identifies these sections as a statutory restitutionary regime, whose policy goals are: (i) fostering the collective insolvency process; (ii) enabling the equal distribution of an insolvent's assets; and (iii) deterring the dismemberment of companies on the verge of insolvency.

2/ The question when the innocent recipient of a voidable preference should be entitled to invoke a change of position defence has been considered in several Commonwealth cases construing similar statutory regimes, some of which specifically provide for such a defence in general terms: see the cases discussed in T O'Sullivan, 'Defending a Liquidator's Claim for Repayment of a Voidable Transaction' (1997) 9 Otago LR 111, and also: Re Ernst and Young Inc (1997) 147 DLR (4th) 229, Alberta CA; Countrywide Banking Corp Ltd v Dean [1998] AC 338, PC; Moller Johnson (Motors) Hawera Ltd v RD and SM Taplin Contracting Ltd (No 2) (15 July 1998, unreported), NZHC.

______________________________________
Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 020 7848 2290
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