The recent British Columbia Supreme Court decision in Yukon Zinc Corporation (Re), 2015 BCSC 836, provides some rare insight into the operation of provincial “miners lien” legislation in an insolvency context.
Background
The Alberta Energy Regulator’s (the “AER”) final phase of changes to the Licensee Liability Rating Program (the “LLR Program”) comes into effect on August 1, 2015. The AER’s Bulletin 2015-13 (found here) says that the implementation date was delayed from May 1 to August 1, 2015, to give licensees more time to understand the implications of, and prepare for, the Phase-3 program changes in light of current market conditions.
What is a Stalking Horse?
In the distressed M&A context, a stalking horse refers to a potential purchaser participating in a stalking horse auction who agrees to acquire the assets or business of an insolvent debtor as a going concern. In a stalking horse auction of an insolvent business, a preliminary bid by the stalking horse bidder is disclosed to the market and becomes the minimum bid, or floor price, that other parties can then outbid.
On 20 May 2015, the Supreme Court of Appeal (SCA) delivered judgment in the matter of African Banking Corporation of Botswana v Kariba Furniture Manufacturers & others(228/2014) [2015] ZASCA 69, dealing, amongst other things, decisively with the proper interpretation of the words 'binding offer' as they appear in s153(1)(b)(ii) of the Companies Act, 71 of 2008 (Act).
As parties to litigation, creditors often find themselves in a predicament where the individual they have a claim against has assets of insignificant value. The same individual may, however, be a trustee of a discretionary trust owning substantial assets. Faced with this difficulty, creditors are left with little choice but to ask a court to 'go behind the trust' in an attempt to find assets to execute judgment against.
In two recent cases decided in the Supreme Court of Appeal (SCA), namely,Willow Waters Homeowners Association (Pty) Limited v KOKA NO and others [2015] JOL 32760 (SCA) and Cowin NO v Kyalami Estate Homeowners Association (499/2013) [2014] ZASCA 221, the SCA was asked to consider:
The in duplum rule is a common law rule that provides that arrear interest ceases to accrue once the sum of the unpaid (accrued) interest equals the amount of capital outstanding at the time (and not the amount of capital originally advanced). "In duplum" directly translates to "double the amount".
Recent decisions in the Ontario courts have brought this issue to the forefront, which is salient during this time of economic uncertainty for the oil industry and its related environmental obligations. The courts have had to focus on balancing competing public interests: those of creditors and the general health and safety of the public when a debtor has an outstanding obligation to remediate its pollution.
Ever since the new business rescue regime, contained in Chapter 6 of the Companies Act, No 71 of 2008 came into force in May 2011 there has been much anticipation as to how courts would treat sureties who had stood and provided security for the debts of a company (principal debtor) that subsequently went into business rescue and had a business rescue plan adopted: would such suretyships remain unaffected and enforceable?
Although a tenant's insolvency does not automatically terminate the lease or confer a right upon a landlord to cancel the lease, a landlord is not left without any remedies where a tenant is in breach of the lease before the tenant is wound-up.
A recent judgment of the Supreme Court of Appeal (SCA) in Ellerine Brothers (Pty) Limited (Ellerine) v McCarthy Limited, clarified the legal position.