Last week the Court of Appeal finished hearing the long awaited and much anticipated appeal in Jervis and another v Pillar Denton Limited (Game Station) on the hotly contested issue of whether rent is payable as an administration expense. Depending on the decision of the appeal judges this case may trigger a dramatic shift in the way that rent arising during administration is currently treated.
Background
The Act provides for both a single insolvency priority order for underfunded schemes where the employer is solvent at the date of wind-up and a double insolvency priority order for underfunded schemes where the employer is insolvent at the date of wind-up. It should be noted that for a scheme with a number of participating employers, all of the employers must be insolvent for the double insolvency priority order to apply.
Single insolvency priority order
A former director of Custom House Capital Limited (CHC) was recently found by the High Court to have fraudulently misrepresented to an investor that her €145,000 investment in the company was “safe” a year before CHC's collapse.
In March 2010 Ms Tressan Scott entered into a Subordinated Loan Agreement with CHC pursuant to which she loaned the sum of €145,000 to CHC. At the time the agreement was signed, Ms Scott was recovering from treatment for Lymphoma.
On 22 January 2014 the High Court ordered the winding up of a property company, Fuerta Limited, on the unusual ground that it was just and equitable to do so. Resort to this ground for winding up is usually reserved for the most intractable of situations and it is thought to be the first time the Court has done so on foot of a creditor petition.
Insolvency practitioners are routinely asked to adjudicate on claims to retention of title of goods supplied. This task often involves an analysis of whether the goods in question have become fixed to land, irreversibly mixed with other goods or whether they remain as identifiable items.
In the recent case of Re Moormac Developments Limited (in receivership)[1], the High Court gave further clarity to this area of the law.
A number of recent High Court decisions suggest an increase in the number of interlocutory applications being brought by receivers seeking to obtain vacant possession of the properties over which they have been appointed.
This update focusses upon two recent High Court decisions dealing with (respectively) the ability of the court to retrospectively extend court-appointed receiverships, and the issue of whether COMI had shifted to England for a German national seeking bankruptcy here.
Extension of court-appointed receiverships
The case of Bank of Ireland v (1) Edeneast (2) Cosgrove and (3) Maguire (17/09/2013) concerned an application by the bank to retrospectively continue and extend the appointment of a courtappointed receiver.
On 23 August 2013, the High Court granted the petition of Bank of Ireland to have Brian O’Donnell and his wife, Mary Patricia O’Donnell adjudicated bankrupt. One of the issues before the Court was the appropriate date for determining the centre of main interests (COMI) of a debtor. Two possibilities were put forward: (i) the date of presentation of the bankruptcy petition to the Examiner’s Office of the High Court; or (ii) the date of the hearing of the application by the High Court.
In its decision in In re Davis Joinery Ltd [2013] IEHC 353, the High Court identified the difficulties that employees of corporate employers may face when their employer ceases trading without taking any steps to formally wind-up the company.
The Government, has announced that it is examining potential changes to the law to clarify the position of residential tenants where a receiver is appointed to rented accommodation. Concern has been expressed that there is a lack of clarity as to whether a receiver appointed to such a property assumes any of the responsibilities of the landlord or whether he should be solely concerned with recovering value from the asset, as would be conventional.