In Germany, securitization SPVs, factoring companies and asset based lenders take security over the leased assets owned by the leasing company by way of a security transfer of title. However, in all cases of a leasing company’s insolvency where the leasing company has still possession of the assets, the owner of the security in the leased assets was in the past not seen as being entitled to realise the value of the assets itself.
On 5 April 2017, an amendment to the German Insolvency Code (Insolvenzordnung – “InsO”) has come into force which provides for various changes to the avoidance rules and clawback laws in German insolvency proceedings.
The major change affects the right of an insolvency administrator to challenge transactions for willful disadvantage (§ 133 InsO).
In Erwood v Official Assignee [2015] NZCA 478 an application was made to review a decision declining to dispense with security for costs. The applicant, Mr Erwood, argued that he had demonstrated impecuniosity, and that the Registrar had erred in finding to the contrary.
Mr Erwood held nearly $800,000 on deposit with a bank. His account had been frozen by the bank on the basis that Mr Erwood lacked the capacity to give the bank authority for the account. The bank had formed this view on information provided to them by Mr Erwood.
The majority expressly noted that, had they not felt bound by the Supreme Court’s interpretation, they would have agreed with the minority and required the investor to pay back not just the fictional profits, but also the profits of his capital investment.
We look at the reverberations last year from Fences & Kerbs and speculate on their continuing effect this year.
Case volume
The Reserve Bank has published a consultation paper on insurance solvency standards: the quality of capital and regulatory treatment of financial reinsurance. The paper outlines the attributes the Reserve Bank expects to see in regulatory capital instruments, such as permanence and the ability to absorb losses, and proposes consequential clarifications to the solvency standards to reflect these expectations.
The Court of Appeal has reversed the High Court’s decision in Healy Holmberg Trading Partnership v Grant on a PPSA issue it describes as being of “practical significance”.
In Gibbston Downs Wines Limited and RFD Finance No 2 Limited v Perpetual Trust Limited HC Christchurch CIV-2010-409-00176 28 May 2012, the High Court considered the effect of registration of a subordination agreement on the respective priority of two perfected security interests registered on the Personal Properties Securities Register (PPSR).
In Simpson v Commission of Inland Revenue (2012) 25 NZTC 20-119 (CA) the Court of Appeal held that receivers of a mortgagee which is not registered for GST must still account to Inland Revenue for GST on a mortgagee sale. This decision is controversial and pending possible resolution of the matter by an appeal to the Supreme Court, receivers of mortgagees that are not registered for GST should take legal advice as to how they should best proceed.
It’s now official. Priority between competing security interests under the Personal Property Securities Act (PPSA) is assessed at the time those interests come into conflict. This will usually, but not always, be when receivers are appointed.
The PPSA is silent on the issue but the general view, now confirmed by the High Court, has been that the rule established in the Canadian Sperry1 case is the correct approach.