Discriminating DOCAs: when the courts will terminate a deed of company arrangement that seeks to discriminate against particular creditors.
With rising levels of corporate insolvencies, it is no surprise that the use of the voluntary administration regime for the purposes of putting forward a deed of company arrangement (DOCA) has increased. DOCAs have proven to be a time and cost-effective tool to recapitalise or restructure a distressed business.
On 31 December 2024, the Fifth Circuit Court of Appeals (the "Federal Court of Appeals") ruled that the uptiering transaction conducted by Serta Simmons Bedding LLC ("Serta") did not constitute an "open market purchase", reversing the 2023 summary judgment of the Bankruptcy Court for the Southern District of Texas (the "Texas Bankruptcy Court") that rejected the excluded lenders' claims for breach of the credit agreement. The Federal Court of Appeals also reversed the approval of certain plan provisions relating to an indemnity for the uptiering transaction.
The common law of assignments for benefit of creditors (“ABCs”) has been around for a very long time as an out-of-court process under the law of trusts: debtor is trustor, assignee is trustee, and debtor’s creditors are beneficiaries.
And the common law of ABCs had already been well-established, when the U.S. Constitution was ratified.
key takeaways
The insolvency of a premises licence holder has an immediate impact from a licensing perspective. Most premises licences are granted in perpetuity. They can be surrendered by the holder, temporarily lapse if annual fees are not paid, or be revoked following a review. These are actions the licence holder either proactively instigates or is given notice of. However, a licence lapsing because of insolvency is different because the premises licence holder may be unaware that a licence has lapsed and it may be too late to rectify matters when the lapse is brought to their attention.
Trustees in Bankruptcy seeking to make distributions to a creditor who may be subject to UK sanctions should follow the guidance in the recent case of Thomas, Carter, Nilsson (as the joint trustees in bankruptcy of Nikolay Fetisov and Ilya Yurov) and PJSC National Bank Trust [2025] EWHC 75 (Ch).
Background
TLT were instructed to act on behalf of the joint Trustees in Bankruptcy of two Russian individuals, Nikolay Fetisov and Ilya Yurov.
Overview
We asked our team for their predictions of what they think 2025 might bring in the Property Disputes sector.
Insolvencies and Restructuring
Author - Thomas H. Curran
Firm -Thomas H. Curran Associates
Seán Dunne, the once-buccaneering property developer who embodied the hubris of the Celtic Tiger boom and now the ravages of the bust, will be 73 years old when he finally exits bankruptcy.
The Federal Court of Australia has recently delivered judgment in the case of Deputy Commissioner of Taxation v ACN 152 259 839 Pty Ltd [2024] FCA 1489. The Court held that in some circumstances, a statutory demand can be validly served on a perceived temporarily empty company office.
On 20 May 2024, an ATO officer purported to serve ACN 152 259 839 Pty Ltd (the Company) with a statutory demand and an accompanying affidavit by leaving the documents at the Company’s registered office.
Contract Natural Gas Limited v ZOG Energy Ltd [1] is the first post-Enterprise Act 2002 judgment on the effect of administration on limitation. After reviewing existing authority and statute, the Court confirmed that (among other things) time does not stop running for limitation purposes when a company enters a post-Enterprise Act administration. Fraser Ritson, Aziz Abdul and Brian Rostron acted for Joshua Dwyer and William Wright in their capacity as the joint liquidators of Contract Natural Gas Limited – in Liquidation.