David Schmitz

David Schmitz has a wealth of experience in most areas of Chancery and Commercial practice, and this background makes him particularly adept at dealing with complex problems that require knowledge of several fields. To take a recent example, he has advised a national charity, with a large property portfolio, on how to get in the title to the freehold and leasehold interests of a property, where the titles are unregistered, the trusts pre-date TLATA and the ownership of both interests is vested in an associated company which has been dissolved.

His practice has an emphasis on property litigation and on professional negligence cases involving property, but he also deals with private client work, in particular pensions and charities, and with cases of insolvency, undue influence and cohabitation.

He is a qualified mediator.

He is working, when time permits, on a book on Art and the Law, and has prepared draft chapters on copyright, ownership, interference with ownership, claims by and against states, claims arising out of crimes and other acts of states, and liability for misattribution.

From 2010 to 2014 he was a borough councillor in Haringey, London and served on the planning committee for three years.

Insolvency & Bankruptcy

David has acted in a number of matters where substantial questions in the law of  insolvency have arisen. These include:

• An appeal to the Court of Appeal, settled just before the hearing, where the issue was whether, under the Insolvency Rules and the terms of the IVA in question, a mortgagee, voting in favour of the IVA, had thereby abandoned its security over a property for which it was seeking possession.
• An appeal to the Court of Appeal for the setting aside of a statutory demand, where the point in issue was whether a contract of guarantee, set out in a single document, can bind the signatories if any of the persons, who are named in the document as a guarantor, has yet to sign it.
• An appeal to the Court of Appeal which considered whether, in an application to set aside a statutory demand on the ground that the debt is disputed, the Court ought to refuse the application, if the ground was not raised in an earlier, successful, application to set aside an earlier demand for the same debt, on a different ground.

Reported Cases

Harvey v Dunbar Assets PLC  [2013] B.P.I.R. 722.  An appeal to the Court of Appeal where it was successfully contended that the debt was disputed on substantial grounds because the guarantee was set out in a single document and because there was credible evidence that one of the parties had not signed it.

Harvey v Dunbar Assets PLC (No. 2) [2017] B.P.I.R. 450. An appeal to the Court of Appeal which considered whether, in an application to set aside a statutory demand because there is a substantial defence to the claim, the Court ought to apply the doctrines of res judicata and issue estoppel and thereby  refuse to allow if the defence was not raised in an earlier, successful, application to set aside an earlier demand for the same debt, on a different ground. The Court also considered whether any part of any decision can create an issue estoppel if the decision is subsequently overturned on appeal.

Krasner v Dennison [2001] Ch 76. An appeal contesting a trustee in bankruptcy’s assertion that, absent any statutory exception, a bankrupt’s personal pension passes entirely to his trustee in bankruptcy, notwithstanding tax legislation which imposes penalties upon alienation of those rights and notwithstanding any contractual restriction purporting to prohibit such alienation. Note: legislative protection of pensions was brought into force shortly after the decision, and the case itself was settled  after the appellant obtained permission to appeal to the House of Lords.