Introduction
Welcome to the 3rd edition of Going Concerns where we strive to bring you the latest updates on restructuring and insolvency law. In this issue, we provide:
1. An update on the extent of financial disclosure that may be ordered against a company undergoing a scheme moratorium under s. 211B(6) of the Singapore Companies Act (Cap. 50);
2. A further commentary on the Insolvency, Restructuring and Dissolution Bill; 3. A commentary on the Singapore recognition process of foreign bankruptcies;
How the recent changes will impact restructurings of listed companies
To secure an order for the #winding-up of a Quasi-Partnership company on the Just& Equitable ground, is it necessary only to show that mutual trust and confidence between the shareholders/quasi-partners has broken down? Hardwicke investigates the recent case of Badyal v Badyal & Ors [2019] EWCA Civ 1644
Background
2018 was seen by many as the ‘year of the CVA’ and the year of the so -called ‘Retail CVA’ in particular. Such CVAs have been used in an attempt by companies operating in the retail and casual dining sector with burdensome leases to reduce the cost of their premises whilst continuing to trade.
2019 was widely expected to be the year in which there was a challenge by a landlord under s.6 of the Insolvency Act 1986 (‘the Act’) to the use of CVAs to force a rent reduction, without comparable cuts to other creditors and so it has proved.
The recent case of Sell Your Car With Us Ltd v Anil Sareen will be of interest to practitioners in Corporate Insolvency as it provides a useful reminder that there is no strict rule that the winding up procedure is inapt for mere debt collection.
The Facts:
The creditor (“AS”) had engaged the debtor company (“SYC”) to sell his Maserati Levante sports car and on completion of the sale to deposit the proceeds in his bank account. Communications were agreed to be conducted by email.
In Skandinaviska Enskilda Banken AB v Conway & another [2019] UKPC 36, the Privy Council upheld the decision of the Court of Appeal of the Cayman Islands that the appellant bank, SEB, was required to repay redemption payments held to be preferences notwithstanding that it had received the funds in the capacity of nominee, and had already distributed the funds to the beneficiaries without any ability to recover them.
Facts
Hsin Chong Construction Company Limited [2019] 原诉法庭 1531 (判决日期2019年6月13日)
合资企业协议通常会包含如下条款：在发生特定事件（包括违约方破产）时，赋予无过错方将违约方排除在合资企业之外的权利。本案中，法庭对该类条款是否无效进行了考虑。
背景介绍
2013年11月，Hsin Chong Construction Company Limited (以下简称“该公司”)与Build King Construction Limited （以下简称“Build King”）签订了一份合资企业协议（“合资企业协议”）并成立了一家非法人型合资企业（“合资企业”），目的是向香港一个政府建设项目（“该项目”）提交投标。该公司和Build King在合资企业中持有的权益分别为65%和35%。香港政府于2016年6月22日将该合同授予给了该合资企业。
该公司于2017年陷入财务困境，并于2018年8月27日面临清盘的命运。
2018年12月13日，Build King行使了其在合资协议下的权利，以该公司破产为由，将该公司从合资企业中排除（“排除条款”）。
Introduction
The UNCITRAL Model Law on the Recognition and Enforcement of Insolvency Related Judgments (‘the New Model Law’) is intended to fill the gaps that currently exist in cross-border conventions as they apply to the recognition and enforcement of judgments in insolvency proceedings.
Re Kaoru Takamatsu – [2019] HKCFI 802 (date of judgment 25 March 2019)
For the first time the Hong Kong Court has recognised a Japanese winding up proceeding and granted assistance to a bankruptcy trustee appointed by the Japanese Court.
Background
On 1 March 2018, the District Court of Tokyo, Twentieth Civil Division (“Tokyo Court”) ordered Japan Life Co, Ltd (“Japan Life”) to be wound up and appointed Mr Kaoru Takamatsu as trustee in bankruptcy.