In Re Boart Longyear Ltd (No 2) the Supreme Court of New South Wales recently approved two creditor schemes of arrangement on the application of Boart Longyear Limited. The schemes were considerably amended after the Court indicated at the first hearing that it was not likely to approve the original schemes on fairness grounds. Significantly, the Court ordered the parties to attend a mediation to resolve the fairness issues – something that has not been done before in a scheme of arrangement in either Australia or the United Kingdom.

The English Court of Appeal has recently decided that a corporation that held shares in a company remained a shareholder notwithstanding the shareholding company's dissolution.

BWE Estates Limited had two shareholders: an individual named David who held 75% of its shares and a company, Belvedere Limited, which held the remaining 25%. Although Belvedere was dissolved in 1996, it remained listed as a shareholder in BWE's share register.

In the English High Court, the joint administrators of four English companies within the former Lehman Brothers group sought directions from the Court in respect of a proposed settlement. The settlement would put to rest substantial inter-company claims including those at issue in the 'Waterfall III' proceedings.

In a second application heard on the same day, Hildyard J considered an application by the administrators of Lehman Brothers Europe Limited (LBEL) for directions that would enable a surplus to be distributed to the sole member of LBEL while LBEL remained in administration. The proposed scheme had material benefits for both shareholders and creditors. The administrators acknowledged that the orders sought were an indirect means of circumventing the Insolvency Act 1986 (UK), which does not expressly provide for directors to make distributions during an administration.

The Court of Appeal has recently dismissed an appeal from the High Court's judgment (discussed in our September 2016 update) setting aside a compromise under Part 14 of the Companies Act 1993 after finding that the challenging creditors, who had voted against the compromise, had been unfairly prejudiced by the decision to call only one meeting of creditors.

Purpose

A continuación vamos a explorar diversos problemas que se plantean a propósito del apartado 9 de la disposición adicional 4.ª de la Ley Concursal, cuando existen garantes personales (o garantes reales por deuda ajena) en un proceso de refinanciación homologable por dicha disposición.

1. El crédito contingente contra el garante que refinancia por la disposición adicional 4.ª

Below we will explore several problems that arise in connection with para. 9 of the 4th Additional Provision ("AP") of the Insolvency Act ("LCon") when there are personal guarantors – or collateral-providers for third party debt – within refinancing arrangement ‘homologation’ (court-sanctioning) proceedings under said 4th AP.

1. Contingent claim against the guarantor who refinances under the 4th AP.

PRIMERA. El dinero de la refinanciación a efectos de los artículos 71 bis, 82.2.11.º y la disposición adicional 4.ª de la Ley Concursal (LCon) es suficiente que se haya suscrito «en el contexto de la refinanciación» y se destine a que el deudor obtenga liquidez, pudiendo ser una financiación simultánea, anterior o posterior al acuerdo, «siempre y cuando esté íntimamente conectado conéste y con la viabilidad de la empresa a corto o medio plazo»(conclusión aprobada por mayoría).

In Day v The Official Assignee as Liquidator of GN Networks Ltd (in Liq) [2016] NZHC 2400, the High Court rejected a claim that the funding arrangement at issue constituted maintenance or champerty.