This question had until recent times been a conundrum of modern fixed charge receiverships (as well as receivers appointed under the Law of Property Act 1925), because in the scenario of the receiver seeking to step in and deal with property, the receiver is also said to be the borrower's deemed agent. It therefore begged a thorny question of the receiver, about how to reconcile being on both sides of the possession action.

Insolvency officeholders seeking to realise claims or other rights of action will take comfort from the Court of Appeal’s decision in Re Edengate [2022] EWCA Civ 626.

The Court held that failure by a liquidator to give a defendant the opportunity to buy or settle a claim against it before selling the claim to a third party is not necessarily perverse. However, it may often be sensible or good practice to do so.

In Algeri, in the matter of WBHO Australia Pty Ltd (Administrators Appointed) [2022] FCA 169, the Federal Court heard the second application by the administrators who were seeking an extension to the convening period for the second meeting of creditors, which pursuant to section 439A(5) of the Corporations Act 2001 (Cth) (the Act) was set to expire on 24 March 2022.

There are significant differences in the procedures available to lenders north and south of the border when it comes to enforcing fixed charges or standard securities over real/heritable property. In this blog, we will compare the process in England & Wales ("E&W") of appointing a fixed charge or "LPA" receiver with the Scottish calling-up procedure

England & Wales: LPA receivers

Often, debtors’ shares in companies are subject to seizure in security or enforcement proceedings. But the debtor does not lose its status as a shareholder in the company after the shares are seized, and the creditor still remains a third party with respect to the company. Thus the debtor may continue to exercise the corporate rights attached to the seized shares, making it difficult for the creditor to satisfy its rights.

Deepening a split of circuits, the First Circuit Court of Appeals held that the Bankruptcy Code waived the sovereign immunity of Native American Tribes. The May 6, 2022 opinion by Judge Sandra L.

In the recent case of In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 340, the NSW Supreme Court has provided clarity on the order of priority for employee debts and secured creditor claims, where the key asset is an entitlement to tax refunds for research and development.

This matter involved the liquidators of Spitfire Corporation seeking directions under s 90-15 of the Insolvency Practice Schedule (Corporations) that:

In a recent case involving a default judgment to recover the sum of an outstanding loan, the Federal Court of Australia considered whether it had jurisdiction to set aside a bankruptcy notice issued against the guarantor of the loan and whether it had jurisdiction to extend the time for compliance with the bankruptcy notice.

Background

The Hon’ble Supreme Court has recently upheld a Judgement of the Division Bench of Tripura High Court in the case of Sri Subhankar Bhowmik vs Union of India(1) wherein it was held that a Decree Holder cannot be treated at par with Financial Creditors in a Corporate Insolvency Resolution Process (CIRP) initiated under the Insolvency and Bankruptcy Code, 2016 (Code).

Quite recently, a two Judges’ bench of the Hon’ble Apex Court in Indian Overseas Bank v. M/s. RCM Infrastructure Ltd. & Anr., Civil Appeal No. 4750/2021 (dated 18.05.2022), inter alia, determined on the issue of applicability of provisions under Section 14 of the Insolvency and Bankruptcy Code, 2016/ IBC/ Code to a proceeding initiated in terms of the SARFAESI Act, in particular, auction sale.