W - Winding-up
25/11/14
IN THE MATTER OF A COMPANY (CR-2024-BHM-000012) [2024] EWCA Civ 1436
On its proper interpretation, r.7.7 of the Insolvency (England and Wales) Rules 2016 makes presentation of a petition dependent upon payment of the deposit being made. On the facts the petition was only presented when the cheque for the Official Receiver's deposit was received.
17/6/20
BRESCO ELECTRICAL SERVICES LTD v MICHAEL J LONSDALE (ELECTRICAL) LTD [2020] UKSC 25
The fact that a company is in liquidation and subject to the insolvency regime for set-off of mutual claims, does not prevent the company from bringing court proceedings to determine the value of its claim against another party, exercise a contractual right to go to arbitration [50-51], or refer its claim to adjudication [52]. The fact that summary enforcement of the adjudicator’s decision may not be allowed does not deprive adjudication of its potential usefulness [64-67].
16/6/20
RE A COMPANY (APPLICATION TO RESTRAIN ADVERTISEMENT) [2020] EWHC 1551 (Ch)
The court was satisfied that coronavirus had a financial effect on the company before presentation of a winding-up petition within s 5(1)(c) of the Corporate Insolvency & Governance Bill. The court was not satisfied that the company would be insolvent even if coronavirus had not had a financial effect on the company, within the meaning of s 5(3) of the Bill. The court therefore exercised its discretion to restrain advertisement of a winding-up petition.
3/6/20
COLT TECHNOLOGY SERVICES v SG GLOBAL GROUP SRL [2020] EWHC 1417 (Ch)
The court granted an injunction restraining presentation of a winding-up petition in relation to a debt disputed on grounds of illegality. Considers applicable principles [30] and the so-called Ralli Brothers principle that a contractual obligation will not be enforced where doing so would require the commission of a criminal offence in the place where the obligation falls to be performed [33].
2/6/20
RE A COMPANY (INJUNCTION TO RESTRAIN PRESENTATION OF A WINDING-UP PETITION) [2020] EWHC 1406 (Ch)
The court granted an injunction to restrain presentation of a winding-up petition based on unpaid rent taking into account the prospective change in the law announced in the Corporate Insolvency and Governance Bill 2020 prohibiting winding-up petitions from being presented for non-compliance with a statutory demand served in the period 1 March - 30 June 2020.
1/5/20
ROBINSON v H G ROBINSON & SONS LTD [2020] EWHC 1 (Ch)
Considers principles to be applied on an application to strike out a winding-up petition presented against a company on just and equitable grounds where the petitioner has unreasonably refused an offer to buy out the petitioner's shares in the company.
24/4/20
THE LIBYAN INVESTMENT AUTHORITY v MAUD [202] EWHC 974 (Ch)
Considers the approach the court should take to the exercise of discretion in considering the views of creditors on an application for a bankruptcy or winding-up petition [71]. As well as the values of their claims, the court will look at the reasons advanced by the creditors on each side of the debate in order to assess whether those reasons are commercially rational, and will have regard to other evidence to assess whether the weight and rationality of a particular creditor's approach is diminished by any extraneous factors such as personal antipathy or affection on the part of the creditor for the debtor (or those connected with it in the case of a company) [78].
2/10/19
BARROWFEN PROPERTIES LTD v HAMBROS INVESTMENTS LTD [2019] EWHC 2548 (Ch)
Summarises the test for an injunction restraining presentation of a winding-up petition [17]. On the facts the test was not met because there was no genuine and substantial dispute.
21/2/18
LDX INTERNATIONAL GROUP LLP v MISRA VENTURES LTD [2018] EWHC 275 (Ch)
Considers principles to be applied on an application to restrain presentation of a winding-up petition on grounds that the debtor company has a cross-claim which exceeded the value of the uncontested debt.
19/5/17
BREYER GROUP PLC v RBK ENGINEERING LTD [2017] EWHC 1206 (Ch)
Principles to be applied in striking out a winding-up petition considered and applied. On the facts the petition debt was disputed on bona fide and substantial grounds and the company had a potential substantial cross-claim. The petition was therefore struck out as an abuse of process.
11/12/15
RE PREMIER MOTOR AUCTIONS LEEDS (IN LIQUIDATION) [2015] EWHC 3568 (Ch)
An application by liquidators under r 4.218A-E of the Insolvency Rules 1986 for litigation expenses to be paid out of floating charge assets was adjourned to be heard with the holder of the floating charge present. The circumstances were not so exceptional as to justify a hearing in private without the bank present and represented.
6/11/15
COLICOLOR LTD v CAMTREX LTD [2015] EWHC 3202 (Ch)
Application to restrain presentation of winding-up petition granted. Principles reviewed [31].
1/10/15
ICAEW STATEMENT OF INSOLVENCY PRACTICE 1 (SIP 1)
Revised SIP 1 comes into force. There are new requirements for IPs to report IP misconduct, notify creditors IPs are subject to the Insolvency Code of Ethics, and provide creditors on request with details of any threats to compliance with SIP 1 and steps to mitigate those threats.
14/9/15
THE OFFICIAL RECEIVER v NORRISS [2015] EWHC 2697 (Ch)
Order made under s 236 Insolvency Act 1986 requiring a Hong-Kong resident to provide a witness statement giving an account of dealings with a company in liquidation.
10/11/14
SINGULARIS HOLDINGS LTD v PRICEWATERHOUSECOOPERS [2014] UKPC 36, [2015] 1 AC 1675
The court can order production of information necessary for the administration of a foreign winding-up but will not do so if the local court with jurisdiction in the winding-up has no equivalent power.
10/4/14
JACKSON v BAKER TILLY IN THE MATTER OF RE ALOCASIA LTD [2014] EWHC (Ch)
Order made under s.235 - 6 Insolvency Act 1986 requiring accountants to produce documents, which detailed dealings with an insolvent company.
3/4/14
BUCCI v CARMAN; RE CASA ESTATES (UK) LTD [2014] EWCA Civ 383
In proceedings under s 238 Insolvency Act 1986 to recover payments made at an undervalue, a company was held to be insolvent at the relevant time. Although it had been able to pay its debts as they fell due, it had only been able to do so by borrowing funds held as deposits for by third party property purchases, thereby getting deeper into long-term debt.
25/3/14
HURD v TPL HOLDINGS LTD [2014] EWHC (Ch)
The court refused summary judgment dismissing a minority shareholder's unfair prejudice petition. Under s 996 Companies Act 2006. Although the proposals which had given rise to the complaint had been withdrawn, relief was still possible given what had been proposed and the manner in which it had been driven forward.
14/2/14
HARDING v EDWARDS; RE BRAND & HARDING LTD [2014] EWHC 247 (Ch)
Considers principles for winding-up a quasi-partnership company on just and equitable grounds where the company had been a family business, deadlock existed in its management, and trust and confidence had broken down between the family members running it.
14/1/14
LSI 2013 LTD v SOLAR PANEL CO (UK) LTD [2014] EWHC (Ch)
Where a company genuinely disputed a debt on substantial grounds, it was wrong to make a winding-up order on the basis that the petitioning creditor could be regarded as a contingent creditor.
20/11/13
RE A COMPANY [2013] EWHC 4291 (Ch)
The debtor failed to satisfy the court that it had a genuine and substantial cross-claim sufficient to justify restraining the presentation of a winding-up petition.
15/11/13
HUNT v HOSKING [2013] EWCA Civ 1408
A claim by a liquidator to set aside payments made to accountants as transactions at an undervalue under s 236 Insolvency Act 1986 was bound to fail because the payments were taken from the accountants' client account so there was no transaction as such between the company and the accountants. The lower court’s decision to strike out the claim was upheld.
13/9/13
SECRETARY OF STATE FOR BUSINESS, INNOVATION & SKILLS v HAWKHURST CAPITAL PLC [2013] EWHC 4219 (Ch)
Considers when a provisional liquidator may be appointed without giving a cross-undertaking in damages.
8/8/13
OAKLEY SMITH v THE INFORMATION COMMISSIONER [2013] EWHC 2485 (Ch)
A liquidator is agent of the company in liquidation (whether compulsory or voluntary) and does not personally become a data controller within s 1(1) Data Protection Act 1984 in respect of data held by the company. On the facts the personal data could be disposed of by the liquidators providing sufficient data was retained to enable the company to respond to any subject access requests and to deal with claims in the liquidation.
28/6/13
RUSANT LTD v TRAXYS FAR EAST LTD [2013] EWHC 4083 (Comm)
Injunction granted restraining presentation of winding-up petition on grounds parties had agreed to refer disputes to arbitration.
6/6/13
The English court had no jurisdiction to open secondary winding-up proceedings under the EC Insolvency Regulation 2000 in relation to Olympic Airlines which had been incorporated and was being wound-up in Greece. To open secondary proceedings there had to be an establishment in England, which meant a place of operations. At the relevant time when the petition was presented in England there was no place of operations here because the company had ceased all commercial activity and only had a skeleton staff for the purpose of the winding-up.
4/6/13
WILLIAMS v GLOVER [2013] EWHC 1447 (Ch), [2014] 1 WLR 166
A right of appeal against a tax assessment was not property within s 436 Insolvency Act 1986 and could not be assigned by a liquidator.
9/5/13
BNY CORPORATE TRUSTEE SERVICES LTD v EUROSAIL-UK 2007-3BL PLC [2013] UKSC 28, [2013] 1 WLR 1408
Loan notes were issued on terms that those with lowest priority would not be redeemed until 2045 but the trustee could serve an enforcement notice in certain default events, including if the issuer was unable to pay its debts within s 123 Insolvency Act 1986. An option was given for another company to purchase the notes for nominal consideration if the trustee determined that the issuer was unable to pay its debts. The issuer managed to maintain interest payments, but its accounts showed liabilities in excess of assets. Claims that the issuer was unable to pay its debts within s 123 failed. For the purpose of the balance sheet test in s 123(2) the court has to be satisfied on a balance of probabilities that a company has insufficient assets to meet its liabilities, including prospective and contingent liabilities which might not be reflected in statutory accounts. It is inappropriate to apply a test of whether a company has reached the point of no return. On the facts the court could not be satisfied that the issuer was in default until much closer to 2045. The existence of the option would have made no difference as it did not affect the issuer’s liabilities.
22/4/13
IN THE MATTER OF MARCHES CREDIT UNION [2013] EWHC 1731 (Ch)
The court used its inherent jurisdiction to make an order to wind-up a credit union in circumstances of urgency where a resolution of the credit union to wind-up its affairs had been made by all active directors but there was doubt whether the board meeting had been validly convened.
27/3/13
CARILLION CONSTRUCTION LTD v HUSSAIN [2013] EWHC 685 (Ch)
Letters of support addressed by a parent company to directors of a subsidiary stated that the parent would provide financial and business support to the subsidiary to ensure it continued as a going concern. On their true construction the letters did not give rise to obligations enforceable in law. They were only intended to enable the directors of the subsidiary to consider whether it was appropriate for financial statements to be prepared on a going concern basis. They did not purport to be a contract and gave no indication that any consideration had been given. As a result a creditor of the subsidiary had no real prospect of proving that the subsequent withdrawal of support was a transaction intended to defraud creditors within s 423 Insolvency Act 1986. The assertion that there had been a deal to release the parent from liability was based on speculation in the absence any evidence that the companies had ever considered the letters binding.
22/2/13
HUNT v HOSKING [2013] EWHC 311 (Ch)
A claim by a liquidator to set aside payments made to accountants as transactions at an undervalue under s 236 Insolvency Act 1986 was bound to fail because the payments were taken from the accountants' client account so there was no transaction as such between the company and the accountants.
19/2/13
RICOH EUROPE HOLDINGS BV v SPRATT [2013] EWCA Civ 92
Liquidators are obliged to complete a liquidation without waiting for contingent claims to mature and are not obliged to set aside any reserve to cover that possibility. Nor are they required to value such claims at 100% but to make a genuine assessment of the chances of the contingency occurring.
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