On 13 June 2019 the new Insolvency Law(DIFC Law No. 1 of 2019) and the associated Insolvency Regulations 2019 (the “Law”) came in to effect in the Dubai International Finance Centre (“DIFC”) repealing and replacing the DIFC’s Insolvency Law of 2009 (the “Old Law”).

The Supreme Court has just delivered a judgment confirming the entitlement of a judgment debtor to appoint a receiver by way of equitable execution.

The comprehensive judgment is a useful history lesson in the development and expansion of the right to appoint a receiver by way of equitable execution which derives from the old Judicator (Ireland) Act, 1877.

Background

Judgment was obtained by a bank in February 2011 against two borrowers in the amount of €1,064,747.

A recent High Court decision considered the duty of Law of Property Act (LPA) receivers when selling secured property to an associated company of the creditor. The LPA receivers were chartered surveyors, appointed by the creditor in respect of a cider factory over which it had security and were alleged to have acted in bad faith by preferring the interests of the creditor over the interests of the debtor company.

In a recent application for directions from the High Court, the Office of the Director of Corporate Enforcement (the “ODCE”) brought a motion to compel a liquidator contest an appeal by directors of a restriction order made against them in the High Court.

Section 683 of the Companies Act 2014 (“CA14”) requires the liquidator of an insolvent company to apply for an Order restricting the directors. It does not require liquidator to contest an appeal by directors. The ODCE ultimately withdrew the application and paid costs, but the application raises concerns for all liquidators.

A real, as opposed to remote, risk of insolvency is not necessarily enough for the duties of a board of directors to switch from being owed to its shareholders to being owed to its creditors.

A Court of Appeal decision last week has broadly upheld previous TCC guidance as to the ability of companies in liquidation or those subject to CVAs to commence and enforce adjudication proceedings against their creditors. Although theoretically possible, adjudication proceedings commenced by companies in liquidation are now liable to be restrained by a court injunction.  Adjudications by companies subject to a CVA are more likely to be appropriate and, depending on the circumstances, may be enforced without a stay of execution.

Insolvency set-off: a recap

The sale of gift vouchers and their terms and conditions is largely unregulated in Ireland.

Although there is no specific legislation, gift vouchers provided to consumers are subject to the provisions of general consumer protection legislation, such as the Consumer Protection Act 2007.

Gift vouchers that cover a wide range of traders and retailers such as the “All4One” vouchers come within the definition of “electronic money” in the European Communities (Electronic Money) Regulations 2011 are subject to the provisions of those Regulations.

The Chancellor announced in his budget that the Crown is to be re-instated as a preferential creditor in insolvency, reversing the changes brought in by The Enterprise Act 2002.

Coast Stores, the occasional wear retailer and high street stallworth has gone into administration in the UK.

Coast’s sister brand Karen Millen had partially rescued the company, buying its department store concessions arm, website, safe guarding up to 600 jobs. However, as part of a pre pack administration deal, it will not be maintaining Coasts overseas stores or its UK high-street stores.

Kiely Rowan plc the company which owns the business of Irish designer Orla Kiely went into liquidation last week. The retailer closed its online shop as well as one in Kildare Village and two in London. This is very sad for the employees and customers of Orla Kiely as well as her creditors.

However, what does it mean when one hears that a company has gone into liquidation?