Introduction

If a company is insolvent, it is either not able to pay its debts as they fall due, or its assets are less than its liabilities.  An investor/creditor will have the ability to put the company into a formal insolvency procedure and, in most cases, appoint an independent third party to take control of the assets and investigate the conduct of the company’s directors, managers and other controlling functionaries.  Defined terms in this article are the same as the terms which were defined in the potential causes of action article.

A recent decision of the Alberta Queen’s Bench1 has raised some questions about purchase-money security interest (“PMSI”) proceeds and cross-collateralization of assets secured by these types of security interests. It has been suggested that this decision is unique and establishes that using a PMSI as collateral for other indebtedness of the debtor is dangerous. But is this decision really so radical?

Facts:

(Judgment 3/2009)  

The liquidators of Flightlease (Guernsey) Limited (“FLGL”) applied to the Court for an order that no dividends be paid in the liquidation of FLGL to Flightlease (Ireland) Limited (“FLI”) in respect of guarantees given by  

FLGL in respect of FLI’s liabilities. FLI’s liabilities to FLGL were outweighed by the liabilities owed in the opposite direction.