The Court of Appeal decision in Triple Point Technology Inc v PTT Public Company Ltd turns on the wording of that particular contract, but was, in part, unexpected.
This decision does not reflect the generally held view (prior to this case) that liquidated damages will be recoverable until the point of termination at least.
Background
The Technology and Construction Court (TCC) has delivered a significant judgment in Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (in liquidation) [2018] EWHC 2043 (TCC) where the company seeking to refer a dispute to adjudication was in liquidation. The substance of the dispute related to the contractor's claim for payment allegedly due for work completed, and damages for loss of profits.
The contract and the facts
This month we consider the court's refusal to imply an obligation into a loan agreement that a lender should take steps in foreign proceedings to preserve security; the court's view on the failure to heed alarm bells in relation to potential undue influence; and more cases and issues affecting the industry.
No implied term in a loan agreement that creditor should take steps in foreign proceedings to preserve security
As solar industry observers will already know, on April 21st, 2016, (the “Filing Date”) SunEdison, Inc. (“SunEdison”) and several of its U.S. and international subsidiaries (the "SunEdison Group") filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code (the “Chapter 11 Proceedings”)in the United States Bankruptcy Court for the Southern District of New York (the “ US Bankruptcy Court”).1
Introduction
A bankruptcy discharge hearing is the forum for the Court’s determination of a bankrupt’s application for discharge which has been opposed by one or more of: a creditor, the Trustee, or the Superintendent of Bankruptcy. This paper will aim to provide practical advice on preparing for and arguing an opposed discharge, whether from the perspective of the bankrupt, an opposing creditor, or the Trustee.1
Discharge
In 2008, the Supreme Court of Canada ruled in Saulnier5 that a commercial fishing licence constitutes ‘property’ within the context of the Bankruptcy and Insolvency Act (“BIA”) and the Nova Scotia PPSA6, thereby allowing the trustee in bankruptcy to seize the licence from the bankrupt.
When a company goes into administration, time does not stop running against its creditors' claims for the purposes of the Limitation Act 1980. This is different to where a company goes into liquidation as time does then stop running. The effect there is that the claim stays live whereas in an administration, once the limitation period has expired, the claim is time-barred.
Where the Courts Service failed to notify the Land Registry of a bankruptcy petition with the effect that property was disposed of without a pending action having been registered, the trustee in bankruptcy had a right to claim damages.
So long as there is no evidence of willful default or lack of reasonable diligence, failure to submit a claim form in time in relation to a CVA may not be fatal.
Although this case is about a trustee in bankruptcy’s fight to realise his interest in a property by virtue of a debtor’s bankruptcy, the facts (though extreme) are not untypical of a finance company’s position when a hirer refuses to return goods to it despite the fact the court has ordered the hirer to do so.
In this case Mr Canty was made bankrupt in relation to a relatively small debt and he never accepted the position. There followed a number of appeals and challenges over the following years in which he attempted to reopen and relitigate earlier proceedings.