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 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
Legal proceedings need to be filed before the end of any relevant limitation period, otherwise they will be time-barred — often irreparably. There are various reasons why a person may delay commencing proceedings – for example, they may be waiting on litigation funding before prosecuting their claim or need more time to gather evidence in order to decide whether to proceed.
1. Introducción
En la edición de este mes de marzo destacamos:
La Sentencia de la Audiencia Provincial de Barcelona de 20 de diciembre de 2023 que considera irrescindible la hipoteca constituida por la concursada a favor de la AEAT incluso cuando lo que se garantiza es la deuda de un tercero, y no la propia.
ICC Judge Greenwood’s judgment in Kendall & Anor v Ball & Anor (Re Sherwood Oak Homes Ltd – Sherwood Oak Holdings Ltd) [2024] EWHC 746 (Ch) arises out of an application by the administrators of Sherwood Oak Homes Ltd and Sherwood Oak Holdings Ltd under para 63 Sch B1 Insolvency Act 1986 and/or s 234 Insolvency Act for a declaration that land forming part of a development site in Mansfield Woodhouse was held on resulting and/or constructive trust for the benefit of Homes or Holdings and an order for its transfer.
The existence of a bankruptcy option is a good thing for any debtor-creditor situation that is highly stressed—whether the bankruptcy option is used or not.
This is especially true in mass-tort cases where a potential exists for (i) hugely-disparate results for similarly situated plaintiffs, and (ii) debilitating delays in the progress of litigation.
In France, losses incurred by a company in a given fiscal year can be carried forward to offset profits in subsequent years, without time limit. The annual offset against future profits is limited to a maximum of €1 million, plus 50% of the portion of profit exceeding this threshold. Any unused balance is carried forward to the following year. It is also possible to opt to carry back losses against the previous year's profits, up to a maximum of €1 million.
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