Flashcards in Insolvency Deck (31)
What are the four grounds on which a company may be wound up?
1. STATUTORY DEMAND by creditor owed more than £750; waited at least 3 weeks; not paid and no arrangement with Coy
2. UNFULFILLED JUDGMENT DEBT - Creditor obtained judgment and attempted to execute, but debt remains unsatisfied
3. CASH FLOW TEST – company unable to pay debts as they fall due
4. BALANCE SHEET INSOLVENCY – assets less than liabilities (including contingent or prospective liabilities)
What are 3 dangers associated for directors who do nothing in an insolvency scenario?
1. Liability of wrongful or fraudulent trading
2. Potential disqualification
3. Breach of statutory duties (especially S.172(3) CA) which, on approaching insolvency, are owed to the creditors
Scheme of arrangement
Any formal agreement between the company and its creditors, binding even dissenting or unknown creditors with court sanction
How does a CVA work (3 points)?
1. WRITTEN PROPOSAL put forward at meetings of shareholders and creditors, approval binding all creditors. Two votes required to secure approval - 75% by debt; and 50% excluding all connected creditors.
2. Coy which does not fulfil obligations – supervisor can petition for WINDING UP
3. Directors of small coys can apply for 28-day MORATORIUM during rescue
Why might a creditor opt for a CVA over a winding up (3 reasons)?
1. Possible ongoing profitable trading if CVA successful (creditors may receive more than on a winding up)
2. Costs of CVA lower than other insolvency proceedings
3. Floating charge holders – no risk of avoidance compared to a winding up
Which 3 categories of people can apply for out-of-court administration procedure?
3. Qualifying Floating Charge Holder
Two situations where an administrator cannot be appointed?
1. An Administrative Receiver has already been appointed
2. A liquidator has already been appointed
Two effects of appointing an administrator?
1. Immediate moratorium – no winding-up order, no enforcement of security, no legal proceedings etc
2. Administrator runs the company – directors cannot make decision without his consent
When can administrator wind up company?
If the company cannot be rescued as a going concern and winding up the company to distribute its assets will be better for creditors
3 reasons why a QFCH might want administration over AR?
1. Avoid bad publicity for lender
2. Prevents other creditors taking enforcement action due to immediate moratorium
3. Enables transactions at an undervalue to be disavowed
What are the limits of the authority of a fixed charge receiver?
He is only the fixed charge receiver of the charge under which he was appointed, and is therefore only entitled to deal with the property concerning it.
When can an AR be appointed?
The AR is appointed (i) under the terms of a debenture, including a floating charge security provided the security covers the whole or substantially the whole of the company’s property; (ii) if the charge is created before 15 September 2003
What is an AR’s duty and to whom is it owed?
AR aims to take possession and sell assets of the company in order to repay the debenture holder (a duty only to the QFCH who appointed him)
What proceedings can be initiated against a company in administrative receivership?
Any – there is no moratorium for AR
3 prerequisites for compulsory liquidation?
1. Locus standi – creditor, administrator, AR or supervisor of a CVA applies for liquidation
2. Grounds for winding up – (i) unable to pay debts or (ii) just and equitable ground
3. Demand for more than £750 which is due and payable and not disputed on substantial grounds
4 steps for a members' voluntary liquidation?
1. SOLVENCY STATEMENT - Directors make SD of solvency (for maximum of next 12 months)
2. SR - Shareholders pass a special resolution to approve the MVL
3. LIQUIDATOR - Shareholders pass an OR to appoint a liquidator
4. NOTICE - Notice of the resolutions must be given to any QFCH
Who commences CVL and how is it commenced (3 steps)?
Shareholders commence but creditors control
1. SR - Shareholders must pass SR to approve the CVL
2. OR - to appoint liquidator
3. CREDITORS' MEETING - should be convened within 14 days
What is liquidator’s aim?
Collect in and realise Coy assets to maximise them for distribution to creditors generally, in order of priority
Fraudulent trading – what are the elements (2 AR 1 MR)? Defence?
Actus reus – (i) any party (including director) who is party to the carrying on of a business (ii) with the intent to defraud creditors or for any fraudulent purpose
Mens rea – actual dishonesty
Defence of "sunshine" – no liability if a director genuinely believed things would get better, this is a defence even if the belief was objectively unrealistic
Wrongful trading – what are the elements (2 AR 1 MR)? Defence (2 elements)?
Actus reus – (i) D was a director at the time; and (ii) company becomes insolvent
Mens rea – director (i) knew or (ii) ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation
Defence of “every step” – a director will not be liable if he can show that (i) he took every step that a reasonably diligent director (or a director with his skill and knowledge, if this imposes a higher standard) ought to have taken, (ii) to minimise the potential loss to the company’s creditors
Who can bring a claim for misfeasance and what are its elements?
Where a director’s liability is already established, any creditor or liquidator may bring a claim against him for repayment, restoration or contribution to the company’s assets
When will shareholder ratification provide a defence to misfeasance?
Only if the company was not insolvent at the time of the alleged act of misfeasance?
Four situations in which directors can be disqualified
1. Wrongful or fraudulent trading
2. Director has been found guilty of fraud
3. Company is insolvent and director is unfit to manage the company (e..g because he procured a voidable transaction)
4. Conviction abroad of an equivalent offence
Which voidable transaction actions does the liquidator need consent for, whose consent is needed and why is consent needed?
For transactions at an undervalue (238); unfair preferences (239); and transactions defrauding creditors (423). No need for 245 – avoidance of floating charges.
Consent of creditors or court is needed (due to risk of diminishing assets if action unsuccessful)
Define a transaction at an undervalue.
A gift or sale for significantly less consideration than that provided by the company.
When is an undervalue voidable (2 elements)
1. TIMING - Took place within 2 YEARS prior to the insolvency; and
2. INSOLVENCY - Company must have been INSOLVENT at the time of the transaction or have become insolvent as a result (presumed if transaction is with director or connected person)
Defence to undervalue claim (3 elements)?
1. Good faith
2. For purpose of carrying on business
3. Reasonable grounds for believing transaction would benefit the company
What is an unfair preference?
Any transaction putting a creditor, surety or guarantor in a better position in the event of an insolvent liquidation than it would otherwise have been in.
When is a preference voidable (3 requirements)?
1. TIMING - transaction was within last 6 months (unconnected person) or 2 years (connected person)
2. INSOLVENCY - Company must have been insolvent at the time or become insolvent as a result
3. MENS REA - Company must have been influenced by a desire to prefer the creditor (presumed if transaction is with a connected person)