Estateducation Limited v The BSS Group Ltd [2026] EWHC 1473 (Ch)

[2026] EWHC 1473 (Ch)

Ref. CR-2026-MAN-000501

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN MANCHESTER

INSOLVENCY AND COMPANIES LIST (ChD)

Venue Before His Honour Judge Halliwell sitting as a Judge of the High Court at Manchester on 24 April 2026

IN THE MATTER OF THE INSOLVENCY ACT 1986

AND IN THE MATTER OF ESTATEEDUCATION LTD

ESTATEDUCATION LIMITED

Applicant

- v -

THE BSS GROUP LTD

Respondent

DR KHAN appeared on behalf of the Appellant

MS BOOTHMAN appeared on behalf of the Respondent

APPROVED JUDGMENT

24 th APRIL 2026

__________________

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Between

Estateducation LimitedClaimant

The BSS Group LtdDefendant

Date 2026-04-24

[1]By an application dated 16 April 2026, Estateducation Limited (“the Company”) seeks an order striking out a winding-up petition in advance of the date listed for the hearing of the petition and an order restraining the Petitioner, BSS Group Limited (“the Petitioner”), from advertisement. The Petition relates to the Company itself.

[2]The Company’s application is being heard today following an order made earlier in the week to adjourn the hearing because the application had been listed with insufficient time for disposal. This was subject to an interim order restraining the Petitioner from advertising the Petition. I made this order mindful that, if the Petitioner were allowed to advertise pending the adjourned hearing today, this would potentially pre-empt a significant part of the application. It was necessary for me to make an order in these terms because the Petitioner declined to offer an undertaking notwithstanding that the envisaged adjournment was of short duration only.

[3]Dr Alexander Khan, of counsel, appears for the Claimant and Ms Amie Boothman, also of counsel, appears for the Petitioner.

[4]The Winding-up Petition is based on the statutory jurisdiction in Section 122(1)(f) of the Insolvency Act 1986, namely that the Company is unable to pay its debts. In support of this contention it is stated, in the Petition, that a letter of demand was served on the Company requiring it to pay £44,431.17, and the Company has failed to pay this amount or secure or compound it to the Petitioner’s satisfaction.

[5]The putative debt is apparently an accumulated trading debt for the price unpaid of goods or building materials supplied to the Company. It appears from the exhibited evidence that, in March 2024, a credit application form was completed, on behalf of the Company. Goods were supplied and, in July 2024, it fell into arrears. In November 2024 there was a payment of £25,394 in respect of the August balance but £38,726.52 then remained due.

[6]On 6 January 2025, the outstanding balance was apparently £42,197.09. By email on the same day, the Petitioner through its employee, Samantha Day, confirmed that an agreement had been reached between the parties for the Petitioner to accept payment to clear the outstanding balance in two instalments of £14,065.70 with a final instalment of £14,065.69 and a warning that, if the Company did not comply with the agreement, the matter could be passed to the Petitioner’s legal team.

[7]In his reply for the Company, Mr Nick Harvey stated this was “good news and very much appreciated.” He did not challenge Ms Day’s description of the agreement.

[8]However, it can be seen from the ensuing correspondence that the Company failed to comply with the agreed payment plan. By an email on 20 January 2025 the Company apologised. The Petitioner agreed to hold the account until 22 January but no further payment was received. Eventually in March 2025 the Company changed its stance and requested the Petitioner to send invoices and delivery notes. It then sought to challenge liability.

[9]The Petitioner maintains that it is now too late for the Company to do so. It relies, in particular, on the terms and conditions of Travis Perkins Plc, which were expressly incorporated when the credit application form for the Company was signed in its behalf. This includes the following provisions.

[10]By Clause 4.5 it was provided that the Petitioner “shall not be liable for any shortages in quantity delivered unless you give written notice to us of such shortages within two working days of delivery. In any event our liability shall be limited to making good the shortfall ...”

[11]Clause 4.7 provided that “any query about delivery shall be made as soon as possible and in any event within twenty eight days of the date when the goods would in the ordinary course of events have been delivered else the goods shall be deemed to have been delivered in accordance with the contract. We are not obliged to provide proof of delivery and/or collection after a period of 28 days.”

[12]Clause 8.1 provided that “payment for goods and/or services supplied during a month on a credit account shall be due and paid in full one payment not later than the last day of the month following the first month of delivery or deemed delivery of the goods ...”

[13]There was also provision in 8.4 for the Petitioner to charge interest - statutory interest or interest at 4% above the base lending rate of Royal Bank of Scotland Plc - from the due date for payment until payment was made in full, together with any costs incurred in recovering those sums, including a debt recovery fee at a rate if 6% of the total amount outstanding.

[14]No challenge to the conditions, under the Unfair Contract Terms Act 1977, has been advanced on behalf of the Company. It is not suggested the Petitioner was precluded from relying on the conditions on the grounds that they were unfair and unreasonable nor has any evidential basis for such a challenge been adduced. In her submissions for the Petitioner, Ms Boothman submitted that the 28-day period in Clause 4.7 of the conditions for queries in relation to delivery was aligned with the period for payment. In any event, she submits that, on the hypothesis such a case were to be advanced, there is no reason to believe that the conditions are unfair or unreasonable or to be regarded as such.

[15]Nevertheless, with a view to challenging its liability to the Petitioner, the Company has filed two witness statements, one from Ben James Smith and the other from Kelly Wallace-Smith. Kelly Wallace-Smith remains a director of the company or is registered as such at Companies House but the current status of Mr Ben James Smith is more obscure. Whilst he was historically a director of the company, he does not state his current occupation or profession. However, he alleges, in Paragraph 2, that he somehow has the conduct of the dispute in the Company’s behalf. He does not unambiguously state his sources of knowledge but it appears, from his witness statement, that he was involved in initiating the dispute with the Petitioner in March 2025 when requesting invoices and proof of delivery.

[16]It appears from Kelly Wallace-Smith’s witness statement that, whilst Mr Smith’s occupation and professional status are obscure, his authority is derived from a board meeting on 8 April 2026, 16 days ago. Although, at the time, she was the Company’s sole director, she described this as a board meeting at which she was present as director. She states that she authorised Mr Ben Smith to conduct correspondence, prepare evidence, issue proceedings and act as the company’s representative in these proceedings. Of course, this post-dates the initial correspondence in which Mr Smith first sought to make requisitions on the Company’s behalf. Ms Kelly Wallace-Smith then purports to adopt Mr Ben Smith’s witness statement, notwithstanding that his witness statement does not identify his own sources of knowledge.

[17]There is attached to Mr Ben Smith’s witness statement a document with the heading, “forensic reconciliation schedule”. This has apparently been prepared by Mr Smith himself. Based on this document, Dr Khan submits that only £29,058.86 was payable in respect of delivery matched invoices and, after matching a credit note of £246.16, the net supported total is £28,812.70. Far from owing a debt to the Petitioner monies, he submits that, on these figures, the Company is owed upwards of £60,00 by the Petitioner given that the Petitioner has apparently made payments on account of £93,000.

[18]It is of course an abuse of the process of the court for any party to present a winding-up Petition in respect of the company, if there is a bona fide dispute on substantial grounds as to the company’s indebtedness. Winding-up petitioners are a class remedy for a company’s creditors, not a forum for the collection of debts. It is an abuse of the process of the court for a putative creditor to present a winding-up petition with a view to forcing a company to make payments in respect of a disputed liability.

[19]The test is not a demanding one. Nevertheless, in the present case, I am not satisfied that the Petition was improperly presented for a collateral purpose. Nor am I persuaded that there is a bona fide dispute on substantial grounds in relation to the Company’s liability for the relevant debt.

[20]Firstly, since the Credit Card Account Application Form has been signed on the Company’s behalf, it is bound by the standard terms and conditions which the Petitioner has borrowed from Travis & Perkins. This includes Clauses 4.5 and 4.7. As Ms Boothman has submitted, these provisions leave little room for the issues on which the Company now seeks to rely.

[21]Secondly, I am not satisfied that the dispute about the Company’s indebtedness is bona fide or genuine given the timing of the allegations and the circumstances in which they were first advanced. They were canvassed for the first time several months after the Company agreed to adhere to the scheme for payment by instalment and Mr Harvey’s email stating that it was “good news and very much appreciated”. Moreover, the Company has not provided a proper explanation for its volte face. Whilst it now seeks to rely on Mr Smith’s reconciliation schedule, this was prepared following the dispute with a view to shoring up the Company’s case. It has been prepared by Mr Smith, himself, without any indication as to his professional expertise and it does not demonstrate that the Petitioner is liable to the Company for upwards of £60,000. On the hypothesis that the contents of the schedule can be substantiated, it suggests only that the Company’s liability to the Petition on its invoice is to be reduced by some £28,812.70, in which case, of course, the Company would remain liable to the Petitioner for upwards of £10,000 which is obviously itself above the statutory £750 schedule. There can also be no convincing answer to Ms Boothman’s submissions about the issues as to invoice address and proof of delivery. Whilst it is contended that invoices were delivered to the wrong address, this point is not overburdened with merit given that they were emailed to the address provided, at the outset, on behalf of the Company itself. This is apparent from the evidence of Mr Sharples.

[22]Thirdly, the Company has not filed any convincing evidence or done anything to show – otherwise than through the production of the schedule itself - that there is a substantial evidential basis for challenging the Petition debt. This is, in itself, fatal to the case which it now seeks to advance. If the Company contends that goods were not properly delivered or invoiced, it is for the Company itself, not the Petitioner, to identify the goods or consignments of such goods that were undelivered or improperly invoiced. It has at least an initial evidential burden. It can also be expected to show that there is preliminary reason to suggest that the attendant shortfall could be of such a scale as to eliminate the putative debt or leave the Petitioner with an outstanding amount of less than the £750 insolvency limit. It has not done so.

[23]In his submissions for the company Dr Khan relies on the Company’s abbreviated accounts showing that, as at 31 March 2025, the Company had net assets of £11,530,268 and submits that, in the light of these accounts, the Company cannot be regarded as insolvent, at least on a balance sheet basis. However, only abbreviated accounts have been appended. There are no notes to the accounts or, at least, no notes to the accounts have been admitted. They are unexplained; there is no profit and loss account and there is no cashflow statement. In any event, insolvency can be inferred from non-payment in the absence of proper explanatory evidence in a suitable case. No doubt, this is to be assessed according to the overall context. In the present case, the context lends support to an inference of cash flow insolvency. At an early stage, as Ms Boothman observes, the Company repeatedly attributed non-payment to cash flow issues. Moreover, whilst their claims have not been investigated and caution is exercisable, two supporting creditors have already filed notice to appear following presentation of the winding-up petition,

[24]I am not persuaded that I should strike out the winding-up Petition or make an injunction restraining presentation.

[25]The application is dismissed. ---------------