The Court of Appeal has given valuable and clear guidance on the circumstances in which applications during an ongoing liquidation may constitute ‘final decisions’ for the purpose of bringing appeals to His Majesty in Council pursuant to the Virgin Islands (Appeals to Privy Council) Order 1967 ( the “1967 Order”). The issue can be an important one in practice – final decisions only require formal or procedural permission to appeal, whereas non-final decisions require substantive permission, based on merit or public importance.

Introduction

In commercial contracts, it is not uncommon to find provisions allowing for contractual discretion on the part of one or more parties, such as the discretion to vary certain interest or payment terms, to choose a port of delivery, or an option to purchase. While such provisions give a certain amount of decision-making power to the party that has been conferred the discretion, they are not without limit. These limits were explored in the Singapore High Court decision of Maybank Singapore Ltd v Synergy Global Resources Pte Ltd [2023] SGHC 258.

What rate of interest should a debtor pay under a bankruptcy plan?

Even if the statutory conditions for cramming down the votes of dissenting creditors has been met, the court retains a discretion to consider other factors

Certain statutory conditions need to be met in order for the court to sanction a plan at least one class of creditors or members has not voted in favour of the plan by the requisite majority (being 75% in value of those present and voting) – referred to as the "cross-class cram down".

In an eagerly-awaited and significant decision, the Supreme Court, in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others [2023] UKSC 28 (“PACCAR”), held, on 26 July 2023, that litigation funding agreements (“LFAs”) under which a litigation funder receives a percentage of any damages recovered by the claimant are damages-based agreements (“DBAs”) within the meaning of section 58AA of the Courts and Legal Services Act 190 (“CLSA”).

Executive Summary

Investors in LMA-based intercreditor agreements¹ (ICA) should be reassured by the commercial approach recently taken by the High Court in construing the "Distressed Disposal" provisions (DD Provisions).

Insolvency practitioners and other potentially affected stakeholders, such as company directors and corporate trustees, should watch this space carefully to keep abreast of any changes to their obligations.

A party must meet a high bar before the High Court will modify or reverse a liquidator’s decision, or consent to a party commencing adjudication (or other legal proceedings) against a company in liquidation (ss 284(1)(b) and 248(1)(c) of the Companies Act 1993, respectively).

Both issues have been examined by the Court of Appeal in United Civil Construction Ltd v Hayfield SHA Ltd (In Liq) [2023] NZCA 377. This case illustrates the limited avenues available for a contractor to resolve payment of outstanding debts after a principal goes into liquidation.

In einer aktuellen Entscheidung hat das BAG festgestellt, dass die Vermutungswirkung des § 125 Abs. 1 Nr. 1 InsO auch dann eingreift, wenn bis zu einem anvisierten Stilllegungszeitpunkt noch viel Zeit vergeht und für ein Unternehmen in der Zwischenzeit – anders als prognostiziert – doch ein Erwerber gefunden wird (BAG, Urteil vom 17. August 2023 – 6 AZR 56/23, PM).

In this week’s TGIF, we consider Morgan & Ors v McMillan Investment Holdings Pty Ltd & Anor [2023] HCATrans 122, a decision to grant special leave, paving the way for the High Court to clarify the law with respect to pooling orders.

Key takeaways