An intention to transfer is not sufficient to claim lost property

The Channel Islands of Guernsey and Jersey did not introduce emergency insolvency legislation as a result of the Covid-19 pandemic and do not presently have measures equivalent to those found in the UK’s Corporate Insolvency and Governance Act, 2020 (“CIGA”).

1 | 6 Critique on the Standing Committee Report on Implementation of Insolvency and Bankruptcy Code - Pitfalls and Solutions The Parliamentary Standing Committee on Finance for the year 2020-2021 (Standing Committee) has published the 32nd Report on Implementation of Insolvency and Bankruptcy Code - Pitfalls and Solutions (Report) on 29 July 2021. The Report includes various observations and recommendations of the Standing Committee with respect to the Insolvency and Bankruptcy Code 2016 (IBC) and the insolvency resolution regime in India.

On September 10, 2021, Agspring Mississippi Region LLC, along with four affiliates, filed a petition under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Lead Case No. 21-11238). Agspring Mississippi Region and its affiliates are each subsidiaries of non-debtor Agspring LLC, an agriculture supply chain services company.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Schedule 10 Regulations 2021) (the “Regulations”) will modify CIGA by extending certain restrictions on the use of winding up petitions, albeit on a more limited basis, in line with the tapering of government support measures introduced to combat the economic impact of COVID-19.

The Court at first instance held that the Applicants failed to establish that the Company was insolvent. The key findings that informed the Associate Judge’s conclusions included the following:

• the funds that were available to the Company to pay its debts included funds in an offset account in the name of the director (and an account in the name of the director’s wife); and
• the Applicants’ claims were based on unreconciled accounts of the Company.

The Applicants were granted leave to appeal and appealed the decision of the Court a quo.

Introduction

Rather unfortunately, there are no statutory provisions available to a company to set aside a statutory demand. If a company is served with a statutory demand and disputes the alleged debt, save for agreeing with the alleged creditor not to present a winding-up petition, it has no alternative but to seek relief from the court and obtain an injunction restraining the presentation of a winding-up petition.

A hotly anticipated decision in the ongoing saga of the Babcock & Brown liquidation was handed down last week, resulting in another win for the liquidator (represented by Johnson Winter & Slattery) and further highlighting the challenges facing liquidators when they are thrust into a quasi-judicial function when assessing proofs of debt.

Insolvency proceedings are typically launched by an administrator or liquidator during an insolvency process. The nature of modern insolvency litigation, including the market for assigning causes of action to third parties, has somewhat muddied the waters on how and where to commence proceedings. Two recent cases provide some valuable insight into the High Court’s approach.

On September 8, 2021, A.B.C. Carpet Co., Inc., dba ABC Carpet & Home, along with two affiliates, filed a petition under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the Southern District of New York (Lead Case No. 21-11591). ABC Carpet & Home is a New York City-based luxury furniture retailer. The company estimates $10 to $50 million in assets and $50 to $100 million in liabilities.