On 23 October 2024, Deputy High Court Judge Le Pichon of the Court of First Instance in the High Court of the Hong Kong SAR granted recognition and assistance to Chan Ho Yin (also known as Michael Chan) (“Mr Chan“) of Kroll (HK) Ltd and Elaine Hanrahan (“Ms Hanrahan“), the joint official liquidators of Bull’s-Eye Limited (“Bull’s-Eye”) following a letter of request issued by the British Virgin Islands (“BVI”) Eastern Caribbean Supreme Court.

Is it possible for a debtor company to issue debt (such as bonds) and contractually agree for that debt to rank lower in priority than debts owed by a company to other unsecured creditors? This article examines the commercial uses of subordinated debt agreements, and considers how courts in the offshore jurisdictions of the British Virgin Islands, the Cayman Islands and Bermuda would treat a subordinated debt agreement in a winding-up.

引言

在香港、中国内地和台湾等司法管辖区运营的家族企业，通常会把企业的实益拥有权和控制权置于英属维尔京群岛（下称“BVI”）注册成立的公司股东名下。受惠于 BVI 公司隐私法的相关优势及其对高净值个人和家族的特殊吸引力，整个企业的实益拥有权甚至能位于国际业务结构顶端的 BVI 控股公司（下称“BVI 控股公司”）发行的股份。

从遗产规划的角度来看，为了确保企业由家族或高净值个人保留控制，企业的融资方式通常是通过股东或几个主要股东向企业提供贷款。如果企业多年来的融资方式一直是 BVI 控股公司获提供的贷款，那么该 BVI 公司欠下的债务总额很有可能相当庞大。一旦贷款人去世便会产生一系列问题，例如死者能否追讨 BVI 公司欠下的债务、追讨申请的正确诉讼地等。

本文将厘清上述部分问题，并分享康德明对于已故个人代表在 BVI 追讨债务的一些指引。

The Parliamentary Joint Committee on Corporations and Financial Services (the Committee) has delivered its report following an inquiry into the “effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy”.

In the much-anticipated decision of Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch (HCA)), the High Court of Australia (the HCA) has now confirmed that the peak indebtedness rule may not be used when assessing the quantum of an unfair preference claim arising from a continuing business relationship.

The Federal Court of Australia (Court) has handed down the first reported decision on the ipso facto stay provisions contained in the Corporations Act 2001 (Cth) (Act).

Chief Justice Hammerschlag, sitting in the New South Wales Supreme Court (the Court), has delivered a judgement of importance to secured creditor and insolvency practitioners alike in Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Recs and Mngrs Apptd) (In liq) [2022] NSWSC 573 (Atlas).

The Parliamentary Joint Committee on Corporations and Financial Services (the Committee) has commenced an inquiry into the “effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy”.^[1]

A recent Hong Kong Court of Appeal decision examined a creditor’s right to commence bankruptcy/insolvency proceedings where the petition debt arises from an agreement containing an exclusive jurisdiction clause in favour of a foreign court: Guy Kwok-Hung Lam v Tor Asia Credit Master Fund LP [2022] HKCA 1297.

In The Australian Sawmilling Company Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294 (Australian Sawmilling), the Victorian Supreme Court of Appeal (VSCA) dismissed an appeal by the liquidators of The Australian Sawmilling Company Pty Ltd (TASCO) against a decision of Garde J of the Victorian Supreme Court (VSC) setting aside the liquidators’ disclaimer of land subject to significant environmental ‘clean up’ costs (Primary Judgment).