In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873, the Hong Kong Court of Appeal upheld a lower court's decision to reject an application to set aside a statutory demand. The appellant had argued (among other things) that an arbitration clause in his agreement with the respondent required their dispute to be referred to arbitration.

The CVA challenge

The landlords’ claim against the Debenhams CVA was put forward on five grounds:

1. Future rent is not a “debt” and so the landlords are not creditors, such that the CVA cannot bind them

REJECTED: The definition of “debt” is broad enough to include pecuniary contingent liabilities, such as future rent.

2. A CVA cannot operate to reduce rent payable under leases: it is automatically unfairly prejudicial

Today (19 September), following an expedited trial, the High Court rejected the application brought by affected landlords to challenge the CVA entered into by Debenhams Retail Limited.

The landlord applicants sought to challenge the CVA which closed stores and imposed rent reductions on landlords according to different categories. 'Category 5' landlords took the biggest hit with rents halved and early termination dates imposed. The CVA proposal was approved by Debenhams' creditors on 9 May 2019.

Five grounds were advanced by the landlords during the hearing:

The recent case of Martin v McLaren Construction [2019] EWHC 2059 (Ch) reminds practitioners to make sure that the debt which forms the basis of a statutory demand pursuant to s268(1) of the Insolvency Act 1986, is due and payable.

You might assume that a statutory demand under s268(1) is a demand for payment and therefore monies payable under an “on demand” guarantee can be demand by a statutory demand. However, the Court in Martin v McLaren confirmed otherwise.

The Facts

The High Court gave its ruling yesterday in the case of Discover (Northampton) Limited and others v Debenhams Retail Limited and others [2019] EWHC 2441 (Ch), rejecting four of the five grounds on which the Applicants disputed the validity of the company's Creditors Voluntary Arrangement ("CVA"), which was approved by creditors in May 2019.

On 19 September 2019, Norris J handed downjudgment in the challenge brought by six landlords against the Debenhams Retail Limited (Debenhams) company voluntary arrangement (CVA) which was approved by 94.71% of Debenham’s unsecured creditors on 9 May 2019.

Before ICC Judge Barber In the Insolvency and Companies List

The facts

In Oversea-Chinese Banking Corporation Limited v ING Bank NV [2019] EWHC 676 (Comm), Moulder J rejected a purchaser’s claim that their damages for breach of warranty should be calculated by reference to a hypothetical indemnity which they would have negotiated with the seller had the true position been disclosed prior to entering into the agreement.

The Government’s final report on how to deal with insolvent airlines has been criticised by major UK carriers for its headline-grabbing suggestion of a new Flight Protection Scheme which would see a levy of about 50p put on customer fares to cover the costs of any future repatriation exercise. But the implications of the report are potentially far more significant and wide-ranging for all stakeholders.

On closer analysis, the report could see changes in:

The lender's dilemma

Lenders who take security over shares in an English company have to decide whether to take either:

• a legal mortgage by becoming registered owner of the shares
• an equitable mortgage or charge with the chargor remaining the registered owner.

A legal mortgage gives the lender the right to vote subject to the terms of the mortgage document and prevents the chargor from disposing of legal title to the shares to a third party, as the lender is the registered owner of the shares.