It’s not the first occasion that a major serviced office provider has landed in a corporate restructuring but it may be the most high-profile. The current evolving situation follows on from such previous fireworks as the failed IPO, a corporate reorganisation that swapped a US headco “inc.“ for an “LLC” (prompting litigation at the end of the last decade), and continuing market uncertainty as to the robustness of the brand.
In what is likely to be the most significant change to the UK restructuring and insolvency market since the Enterprise Act 2002, the Court has yesterday1 paved the way for restructuring plans under Part 26A to the Companies Act 2006 ("RPs") to be used to compromise the rights of landlords, financial creditors and other unsecured creditors provided the company shows that those creditors are "out of the money". There may even be no need to ask those compromised creditors to vote on the RP.
The Hong Kong Court of First Instance has declined to prioritise an arbitration agreement where a debtor intended to dispute the existence of a debt without proving there was a bona fide dispute on substantial grounds.
Dayang (HK) Marine Shipping Co., Ltd v. Asia Master Logistics Ltd [2020] HKCFI 311; HCCW 14/2019
Background
A case study of what to look out for when a tenant or its guarantor is looking like it is heading for financial difficulties
As a prudent and prepared landlord, it's always sensible to assess what potential remedies you might have should a tenant (or its guarantor) become insolvent or enter into some form of insolvency procedure. In this bulletin, we look at a short hypothetical case study and identify some of the key issues that landlords will need to assess in such circumstances.
1. The case study scenario
In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873, the Hong Kong Court of Appeal dismissed an appeal to set aside a statutory demand arising out of online forex futures trading debts.
After reluctantly issuing an initial stay of enforcement in July 2018, the Hong Kong Court of First Instance recently dismissed an application by China Zenith Chemical Group Ltd (CZ) to further delay the enforcement of an arbitral award in favour of Baosteel Engineering & Technology Group Co Ltd (BS).
Baosteel Engineering & Technology Group Co Ltd v China Zenith Chemical Group Ltd [2019] HKFCI 68
In a recent Court of First Instance case before Harris J, Southwest Pacific Bauxite (HK) Ltd (Company) sought to strike out a winding-up petition issued against it by Lasmos Ltd (Petitioner). The ground of insolvency relied on by the Petitioner was a statutory demand of US$259,700.48 (Debt), arising out of a management services agreement (MSA) between the Company and the Petitioner (Parties). The Company disputed the Debt.
Alstom v Insigma, the (in)famous SIAC arbitration administered under ICC rules, was recently up for yet another round of judicial sparring following years of proceedings in several fora, which left Alstom Technology Limited (“Alstom”) with a HK$261 million award but limited assets against which to execute.
The Court of Appeal has today handed down judgment in the hugely anticipated litigation involving the Game group of companies, deciding that, where a company goes into administration and continues to trade from property, rent will be payable on a daily basis for the period during which the company actually occupies the premises.
Although only a few weeks old, 2013 has already seen HMV, Jessops and Blockbuster enter administration, joining last year's failures, which included Comet, Clinton Cards and Peacocks. Given the number of premises these companies occupy across the UK, landlords of retail premises will inevitably be affected.