Die Anforderungen der Finanzverwaltung an die Steuerfreiheit von unternehmensbezogenen Sanierungen steigen in der Praxis.

The Court of Civil Appeal (CCA) delivered an interesting judgment on the adequacy of affidavit evidence when making a bankruptcy order. The CCA, acting solely on the basis of affidavit evidence, upheld an order of the Bankruptcy Court adjudging the appellant (Mr Balgobin) bankrupt pursuant to Section 8 of the Insolvency Act. The issues raised on appeal by the Appellant and which the CCA had to determine on were:

The Supreme Court of Gibraltar has confirmed that the court does not have the power to extend the time for the filing of an application to set aside a statutory demand issued under the Insolvency Act 2011.

A party that claims it is owned monies (the amount must be more than £750) is entitled to issue a statutory demand against the debtor. If the debtor does not apply to the court to set aside the demand within 21 days of being served, the court has no power to extend the time for doing so.

In the current market, investors are increasingly considering their options in relation to the stressed and distressed credits in their portfolios. Whilst mindful of stakeholder relationships, secured lenders may, in some circumstances, wish to consider the "nuclear option": enforcing their share pledge over a holding company of the operating group (ideally, such pledge being over a single company which directly or indirectly holds the entire business - a "single point of enforcement").

In the recent decision of Foo Kian Beng v OP3 International Pte Ltd (in liquidation) [2024] SGCA 10 (dated 27 March 2024), the Singapore Court of Appeal upheld a director’s breach of duty by authorising the payment of a dividend and the repayment of a loan to himself. The decision, considering Sequana, sheds further important light on the directors’ duty to consider or act in the interest of the company’s creditors, coined as “creditor duty”.

The Facts – Briefly Stated

The Porter Davis liquidation in early 2023 put into sharp focus the practice of some builders taking deposits from owners before obtaining domestic building insurance for their work, insurance that helps to protect owners in the event of a builder’s insolvency.

In the case of Porter Davis, this practice left thousands of owners without insurance to recover the loss of their deposits, leading the State Government to implement a relief scheme to compensate home owners over $28 million, later extended to 20 February 2024 and expanded to other builders in liquidation.

When a bankruptcy debtor rejects a lease, a landlord is entitled to a rejection damages claim. Under Section 502(b)(6) of the Bankruptcy Code, a landlord’s claim is capped at “the rent reserved by such lease, without acceleration, for the greater of one year, or 15%, not to exceed three years, of the remaining term of such lease.”

Courts have taken two different approaches in interpreting what constitutes the “15%” in the statute: (A) the remaining rent due under the lease; or (B) the remaining time under the lease.

The “Rent Approach”

An insolvency administrator may lose their right to restitution arising from an insolvency avoidance if they are prevented from exercising the right in good faith by their conduct in the context of the conclusion of a redemption agreement, by which the creditor (and opposing party) waives rights to separate satisfaction.

Decision

In the recent High Court case of Drelle v Servis-Terminal LLC [2024] EWHC 521 (Ch) the Court was asked to answer that very question. David Garner and Owen John of our Commercial Disputes Team analyse the outcome below.

The case is of potential importance to UK businesses that conduct business outside of the UK.

Background

A special administration regime for Payment and Electronic Money Institutions (PIs and EMIs) was established in The Payment and Electronic Money Institution Insolvency Regulations 2021 (the Regulations).