Het hof Amsterdam heeft in het voorjaar van 2016 een uitspraak gedaan over het ontstaansmoment van vorderingen van zorgaanbieders op patiënten en/of zorgverzekeraars. Het ontstaansmoment van een vordering is relevant om in geval van een faillissement van de pandgever te kunnen bepalen of een vordering (reeds) bestond – en dus geldig kan zijn verpand – of dat een vordering nog niet bestond – en dus niet geldig kan zijn verpand.

Feitencomplex

For companies with an appetite for strategic business growth rather than divestment, buying assets from insolvent companies is a particular avenue of opportunity. For example, in the current market, there may be opportunities to purchase oil & gas assets from companies that have not been able to survive the prolonged low oil price. Corporate Partner, Philip Mace, provides his top 'legal tips' for purchasing assets from, in this example, an English administrator of a company.

This is a follow-up to our previous client update on Swiber Holdings Limited written on 29 July 2016. To view our previous update, please click here.

Vanquish Properties (UK) Ltd Partnership v Brook Street (UK) Ltd [2016] EWHC 1508 (Ch)

Vanquish, a developer, was a Limited Partnership under the Limited Partnerships Act 1907 with one General Partner, liable for all obligations of the business, and four Limited Partners.

It was granted an overriding lease by the City Corporation in the name of the Limited Partnership, “acting by” its General Partner. There was no mention of the four Limited Partners.

Counterparties of Swiber Holdings Limited ("Swiber") and its group companies would do well to keep a close tab on any debts outstanding from the group.

Swiber, an SGX-listed company in the oil fields services sector, issued an announcement in the early hours of Thursday 28 July 2016 stating that it filed an application in the Singapore High Court for a voluntary winding up on Wednesday afternoon, together with an application to place the company under provisional liquidation.

The collapse of marine fuel trader OW Bunker & Trading A/S (“OW Bunker”) and its affiliates, in November 2014, has resulted in a blizzard of legal proceedings in the United States. Bunker suppliers and creditors of insolvent OW Bunker entities have sought to secure their claims by arresting vessels or proceeding directly against vessel owners and operators who contracted with OW Bunker entities to supply their vessels with bunkers.

Introduction

The government has commenced a consultation exercise on its proposals to introduce procedures for further education and sixth-form colleges which become insolvent.

The proposed regime would include a Special Administration Regime, aimed at protecting learners from disruption to their courses, helping the rehabilitation of a college where this is possible or providing an orderly wind-up procedure.

The Court of Appeal’s decision in the case of Heis v MF Global highlights the importance of documenting just who has responsibility for contributing to a defined benefit pension scheme.

EIS AND OTHERS V MF GLOBAL UK SERVICES LTD (IN ADMINISTRATION) [2016] EWCA CIV 569, [2016] ALL ER (D) 125 (JUN)

In Berryman v Zurich Australia Ltd [2016] WASC 196 it was decided that a bankrupt's entitlement to claim a TPD benefit under a life insurance policy is not an entitlement that is divisible amongst the bankrupt's creditors, and therefore such an entitlement does not vest in the Official Trustee in bankruptcy. Tottle J of the Supreme Court of Western Australia ruled that the bankrupt insured could continue an action in his own name to recover the TPD benefit. Life insurers may need to adjust their claims' payment practices in light of the Berryman decision.

The true effects of the events of the last few days have yet to be seen. With the mainstream political parties acting like participants in a ‘Compose a Greek Tragedy’ competition, a government unlikely to exercise any meaningful executive functions until autumn (at least), the currency and financial markets in turmoil and the future uncertain on a range of factors, it is tempting to succumb to a condition of inaction whilst waiting to see how the cards fall.