2020年の初めに新型コロナウイルス感染症（COVID-19）パンデミックが広がり始めてから、その拡散を抑えるために全米の州知事が事業の閉鎖を命じる行政命令を出しました。多くの事業主が、事業閉鎖期間の賃料の支払義務から逃れるための救済手段を探ろうとして賃貸借契約書、特にその不可抗力(force majeure)条項を調べました。事業体やその弁護士は、今まで経験したことのない性質のパンデミックと相次ぐ事業閉鎖を目の当たりにしていますが、そのような重要事項の指針となる判例はわずかしかありませんでした。しかし、イリノイ州J.B.プリツカー知事がCOVID-19危機の対応策として、レストランに対して同施設で食事をする客に料理を出す(on-premises consumption)ことを禁じる行政命令を出した結果1、 Hitz Restaurant Group事件において、イリノイ州北部地区連邦破産裁判所は、近時、賃貸借契約書に含まれる不可抗力条項に基づき、テナント（賃借人）‐債務者の賃料支払義務は一部免除されると判示しました。
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.
The Insolvency and Company Court of England and Wales recently held in Sell Your Car With Us Ltd v Anil Sareen [2019] EWHC 2332 (Ch) that, when a debtor fails to comply with a statutory demand and has no arguable case to dispute a debt, a winding-up petition (initiation of liquidation proceedings) is appropriate, despite judges previously expressing distaste towards the use of a petition as a method of debt collection.
The High Court in Cullen Group Limited v Commissioner of Inland Revenue [2019] NZHC 3110 has rejected Cullen Group's attempt to delay payment of half a million dollars in court costs to the Commissioner of Inland Revenue, with Palmer J dismissing the argument that Cullen Group would go into liquidation as a result.
Eric Watson's private investment company, Cullen Group Limited, lost a case in front of Palmer J in March which held that Cullen Group avoided $51.5m of tax. Cullen Group owed Inland Revenue $505,399.55 in court costs.