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 Supreme Court in Sevilleja v Marex Financial Ltd [2020] UKSC 31 has brought much needed clarity to the legal basis and scope of the so-called ‘reflective loss’ principle. The effect of the decision is a ‘bright line’ rule that bars claims by shareholders for loss in value of their shares arising as a consequence of the company having suffered loss, in respect of which the company has a cause of action against the same wrong-doer.
A recent decision of the High Court of New Zealand provides helpful guidance for insolvency practitioners on how aspects of the voluntary administration regime should operate in the context of the COVID-19 pandemic.
On 30 March 2020, the board of directors of EncoreFX (NZ) Limited resolved to appoint administrators to the company. By then, New Zealand was already at Level 4 on the four-level alert system for COVID-19.
The UK Court of Appeal has held that legal privilege outlasts the dissolution of a company in Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600.
Legal advice privilege applies to communications between a client and its lawyers. The general rule is that those communications cannot be disclosed to third parties unless and until the client waives the privilege.
The High Court in DHC Assets Ltd v Arnerich [2019] NZHC 1695 recently considered an application under s 301 of the Companies Act (the Act) seeking to recover $1,088,156 against the former director of a liquidated company (Vaco). The plaintiff had a construction contract with Vaco and said it had not been paid for all the work it performed under that contract.
Regan v Brougham [2019] NZCA 401 clarifies what is needed to establish a valid guarantee.
A Term Loan Agreement was entered into whereby Christine Regan and Mark Tuffin lent $50,000 to B & R Enterprises Ltd. Rachael Dey and Bryce Brougham were named as Guarantors. Bryce Brougham was the only guarantor to sign the agreement. The Company was put into liquidation and a demand made against the Guarantor.
The guarantor argued that the guarantee was not enforceable based on the following:
The Court of Appeal in 90 Nine Limited v Luxury Rentals NZ Limited [2019] NZCA 424 allowed an appeal from a creditor in respect of an application to liquidate the respondent over a failure to pay a statutory demand.
The High Court in Henderson v Walker [2019] NZHC 2184 found a liquidator, Mr Walker, liable for breach of confidence in relation to the distribution of part of Mr Henderson's private information, awarding $5,000 in damages. The liquidator was also found liable for invasion of privacy in relation to distributions made to the Official Assignee, although no separate damages were awarded.