Insolvent trusts – the myth becomes reality is the third in a series of quarterly webinars aimed at providing trustees with a comprehensive overview of various contentious trust topics.

In this webinar we examine the concept of an insolvent trust, provide a summary of the only case addressing this issue (on which our team is acting), outline the developments in relation to the statutory legal position and identify the key issues which trustees need to consider in this scenario.

A creditor in a debt recovery matter can collect more information about the judgment debtor’s financial position through examination. The examination of a debtor isn’t a way to enforce the debt but rather, obtain more information about their assets, liabilities, income and expenditure. This can help you determine what recovery options are available or even if the debtor is worth pursuing.

What is the First Step?

Under the Uniform Civil Procedure Rules (NSW), you will need to prepare and send an Examination Notice to the Judgment Debtor.

How can I protect my company from cash flow problems due to outstanding payments?

It is well worth keeping a close eye on your customers to spot any early signs of financial distress and act quickly.

Establishing a debtor company’s Centre of Main Interests (“COMI”) is an important step for any creditor who wishes to begin insolvency proceedings within the UK. In the context of real estate finance, it is common for the different borrower-side parties to be incorporated in various jurisdictions and, in particular, for the borrower/propco to be a special purpose vehicle incorporated and registered outside the UK.

The High Court has held that a bank owed a duty of care to its customer when on notice that an agent acting for the customer was misusing his authority. In the case of Singularis Holdings Limited (in Official Liquidation) v Daiwa Capital Markets Europe Limited [2017] EWHC 257 (Ch), a bank was liable in negligence to its customer since it was on notice that its customer was at risk of being defrauded by its director but failed to stop payments made for the purpose of misappropriating funds of the company.

The Facts

To start, let me introduce some familiar characters. First, an impecunious claimant who has the benefit of after the event (ATE) insurance, but the disadvantage of an incompetent solicitor. Second, a successful defendant with the benefit of a costs order and a final costs certificate, but the disadvantage of a slippery ATE insurer who has avoided the claimant’s ATE policy because of failures by the aforesaid incompetent solicitor. Different ways around this problem have been tried, and generally failed.

In the first case of its kind, the High Court in England has prevented a shareholder from splitting its shareholding in an attempt to defeat the approval of a scheme of arrangement under section 895 of the Companies Act 2006 (Scheme) by way of manipulation of legislative requirements in relation to Schemes which require approval by a majority in number representing 75% in value of the voting class of shareholders.

(1) SIMON ROBERT THOMAS (2) ARRON KENDALL v (1) FROGMORE REAL ESTATE PARTNERS GP1 LTD (2) LINDA NICHOL (3) CHARLES SPARY (4) STUART JENKIN (5) NATIONWIDE BUILDING SOCIETY : (1) FROGMORE REAL ESTATE PARTNERS GP1 LTD (2) LINDA NICOL (3) CHARLES SPARY (4) STUART JENKIN v (1) SIMON ROBERT THOMAS (2) ARRON KENDALL (3) NATIONWIDE BUILDING SOCIETY sub noms (1) IN THE MATTER OF FREP (KNOWLE) LTD (IN ADMINISTRATION) (2) IN THE MATTER OF FREP (ELLESMERE PORT) LTD (IN ADMINISTRATION) (3) IN THE MATTER OF FREP (BELLE VALE) LTD (IN ADMINISTRATION) [2017] EWHC 25 (Ch)

Dickinson v NAL (Realisations) Staffordshire Ltd is a useful case on how directors’ duties are looked at following a formal insolvency and ways in which an office holder can challenge transactions if there is evidence of wrongdoing or a concerted strategy to frustrate creditors’ recourse to a Company’s asset base which would ordinarily be available to them in an insolvency, subject of course to valid security and/or third party rights.

The modernisation of the Scottish Insolvency Rules has been eagerly awaited for some time. In April 2017, England & Wales will see the newly transformed insolvency legislation take full effect with the introduction of the Insolvency (England and Wales) Rules 2016. These new rules do not, however, impact on Scotland.