The Royal Court has recently handed down the final decision in the matter of Eagle Holdings Limited (in compulsory liquidation).[1] In this decision, the Royal Court of Guernsey provided guidance and assistance to the joint liquidators regarding a distribution of surplus funds.
The first High Court decisions in 2023; Metal Manufactures Pty Limited v Morton Metal Manufactures Pty Limited v Morton [2023] HCA 1 (‘Metal Manufactures’) and Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (‘Bryant’) have provided the final word on preference claims, establishing once and for all that:
1. set-off under s 553C of the Corporations Act 2001 (Cth) (‘the Act’) does not apply to unfair transactions; and
2. the peak indebtedness rule does not apply.
When a borrowing company goes into administration, lenders will want to enforce their security immediately. However, administration risk delays lenders from enforcing their security during the moratorium period without leave from the court or consent from the administrator.
This article provides an insight into administration risk, explains ways to mitigate administration risk and how featherweight securities can be effectively used.
To proceed against a debtor's personal property in Guernsey, customary law remedies are used. These start with the arrest of a debtor's goods and enable all creditors to share in the proceeds in the event that the monies owed are greater than the debtor's assets.
In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection.
In order to proceed against a debtor's personal property in Guernsey, customary law remedies are used which start with the arrest of a debtor's goods but which allow all creditors to share in the proceeds in the event that the monies owed are greater than the debtor's assets.
Arrêts
Once judgment is obtained against a debtor, the 'arresting creditor', will either:
Saisie (meaning "to seize") is a court driven, Guernsey customary law process, governed by the Saisie Procedure (Simplification) (Bailiwick) Order, 1952. It is a three stage post judgment process which enables a creditor to enforce their rights against the debtor's realty in Guernsey.
In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision,[1] the Court of Appeals for the Second Circuit stood by its origina