In separate but related proceedings, the BVI courts have permitted an applicant to inspect documentation relating to the liquidation of certain BVI companies.
In Robert Tchenguiz v Rawlinson & Hunter Trustee SA (the TFT Trust claim) Tchenguiz sought delivery of all proof of debt and claim documentation submitted by the defendant trustees to the joint liquidators in the liquidation of the companies.
Grant Thornton were appointed as receivers over a BVI company under Section 43 of the Arbitration Act 2013 to preserve the value of the company pending the determination of foreign arbitration proceedings. The defendant in the arbitration owned the shares of the BVI Company.
In the case of Delco Participation BV v Green Elite Limited [2018] the Court of Appeal considered the test for appointing liquidators to a company following an alleged loss of substratum.
The Court of Appeal has helpfully confirmed that a judgment creditor can seek an order appointing a receiver by way of equitable execution where:
- the debtor holds a legal or equitable interest in property; and
- execution against the property is not available at law by one of the usual methods, for instance via the sheriff or by a garnishee order.
There was previously doubt as to whether such a receiver could be appointed where the debtor held a legal, as opposed to an equitable interest, in property.
The High Court has recently expressed concern that distressed borrowers are being duped into paying money to the anonymous promoters of schemes, which purport to protect them from enforcement by lenders but are actually ‘utterly misguided and spurious’.
There are a number of schemes being promoted at the moment that supposedly protect borrowers in arrears from enforcement by their lender.
Simple retention of title clauses are commonplace and generally effective in contracts for the sale of goods. However, extending their effect to the proceeds of sale of such goods requires careful drafting.
The Court of Appeal has provided some further clarity around the creation and effects of fiduciary obligations in relation to such clauses.[1]
Proceeds of sale clauses
The High Court has reiterated that cross-examination will not generally be permitted on an interlocutory application, or where there is no conflict of fact on the affidavits.
In McCarthy v Murphy,[1] the defendant mortgagor was not permitted to cross-examine the plaintiff (a receiver) or a bank employee who swore a supporting affidavit.
Background
Two recent judgments have brought further clarity in relation to the rights acquirers of loan portfolios to enforce against borrowers:
In AIB Mortgage Bank -v- O'Toole & anor [2016] IEHC 368 the High Court determined that a bank was not prevented from relying on a mortgage as security for all sums due by the defendants, despite issuing a redemption statement which omitted this fact.
In order to understand this case, it is necessary to set out the chronology of events:
After the decision of the Privy Council in April 2014, the Fairfield Sentry saga continued recently with the new judgment of Justice Leon concerning the status of related US Bankruptcy Court proceedings.
Facts