On 15 August 2022, the UK High Court handed down judgment in Oceanfill Ltd v Nuffield Health Wellbeing Ltd and Cannons Group Ltd.
Background
The claim was for rent and other arrears by Oceanfill, the landlord of a gym in Leeds. It was brought against Nuffield, the original tenant and Cannons, the original guarantor under the lease.
Nuffield had assigned the lease to Virgin Active in 2000, guaranteeing the performance of Virgin Active as tenant and Cannons had given a guarantee of Nuffield's obligations.
Virgin Active restructuring plan
In Re Swiss Cottage [2022] EWHC 1495 (Ch), junior creditors argued that administrators appointed to two companies had exceeded their powers and breached their duties when selling two properties.
Background
引言
近年来，伴随着经济形势与产业政策的变化，融资租赁成为了争议高发领域，并且日益呈现出争议案件数量多、标的金额大等特点。以上海地区为例，根据上海高级人民法院发布的《2020年度上海法院金融商事审判情况通报》，在2020年上海法院受理的一审金融商事案件中，融资租赁合同纠纷的案件数量位居第三，同比上升65.93%，争议标的金额则位居第二，仅次于金融借款合同纠纷。而在诸多争议之中，对于租赁物所有权的保护始终是多年以来困扰我国融资租赁从业者、司法裁判者甚至是立法者的一大难题。[1]
本篇中，我们将结合过往在融资租赁业务领域的执业经验，从程序及实体两个角度，分别梳理《中华人民共和国民法典》（以下简称“《民法典》”）生效前的存量项目中，出租人在租赁物被承租人擅自处分后可能面临的“困局”及“破局”进路。而在下篇中，我们将基于后《民法典》时代法律条文与配套制度的更迭，进一步对融资租赁行业实践的变化作出解读与研判。
一、 “困局”：租赁物被承租人擅自处分，出租人的物权保障岌岌可危
The High Court has sanctioned the restructuring plan of ED&F Holdings Ltd, providing further clarity on the exercise of its discretion to sanction a plan using cross-class cram down.
Background
At the convening hearing, the court ordered that five creditor and two member class meetings be held. All but one of the creditor classes approved the plan by large majorities.
Sanction hearing
The English High Court has sanctioned Smile Telecom Holding Limited's (Smile) restructuring plan, despite there being no parallel restructuring proceedings in Mauritius, the place of Smile's incorporation.
Background
The temporary restrictions on the winding up of companies were lifted on 31 March 2022. This means the legal regime governing insolvency has returned to its pre-pandemic approach.
The pre-31 March position
The English High Court has rejected a creditor's application to bring a moratorium to an end following the monitors' decision not to terminate the moratorium.
Background
A monitor must terminate the moratorium if they 'think' that the company is unable to pay any pre-moratorium debts for which the company does not have a 'payment holiday'. Surprisingly, debts arising under an agreement involving 'financial services' are excluded from the payment holiday.
Decision
On 21 December 2021, the UK government launched the future of insolvency regulation consultation, proposing significant changes to insolvency regulation which it says 'has not kept pace with developments in the insolvency market.'
On 15 November 2021, the English Court released its reasoned judgment for the sanction of Amicus Finance Plc's (Amicus) restructuring plan.
Background
Amicus, a short term property lender, entered administration in 2018. The administrators proposed a restructuring plan to compromise creditors' claims, exit the administration and ultimately restore the company as a going concern. The company faced imminent liquidation if the plan was not approved. Secured creditor, Crowdstacker, an online peer-to-peer lending platform, opposed the plan.
The High Court recently decided that a prosecution could be brought against an administrator under the Trade Union and Labour Relations (Consolidation) Act (TULRCA) in R (on the application of Palmer) v Northern Derbyshire Magistrates' Court [2021] EWHC 3013.