Enterprise Chambers
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8 Contributions by Enterprise Chambers Experts
PRACTICE NOTES
Practice Note
This Practice Note outlines circumstances in which a bankrupt's pre-bankruptcy general transfer of book debts lacks validity. See also Practice Note: Unenforceability of liens over books and records for related guidance...
Restructuring & Insolvency
PRACTICE NOTES
This Practice Note explores liquidators’ use of disclaimer in relation to contracts (commonly a sale contract or transfer) that include overage clauses or provisions, within the statutory framework for disclaiming onerous property under section 178 of the Insolvency Act 1986 (IA 1986). It summarises what overage means, the liquidator’s power to disclaim onerous property, and whether overage can amount to ‘onerous property’ that a liquidator may disclaim in practice. It further considers how the court has applied the effect of disclaiming contracts containing overage in the decision of Groveholt Ltd v Hughes. For fuller guidance on a liquidator’s general power to disclaim onerous property, see Practice Note: The process of disclaimer by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986. For the procedure to be followed when a liquidator disclaims onerous property, see:
Restructuring & Insolvency
PRECEDENTS
VAR Insolvency Act Application Notice
Note: Use this precedent together with an application notice template that accords with the Insolvency (England and Wales) Rules 2016, SI 2016/1024—refer to:
(Form IAA) IR 2016, r1.35
INSOLVENCY ACT APPLICATION NOTICE
CASE NO: [ enter case number ]
[ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES INSOLVENCY AND COMPANIES LIST (ChD) OR IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS IN [ enter location ] INSOLVENCY AND COMPANIES LIST (ChD) OR IN THE COUNTY COURT AT [ enter location ] BUSINESS AND PROPERTY WORK ]
IN THE MATTER OF [ enter company’s name ] AND IN THE MATTER OF THE INSOLVENCY ACT 1986
BETWEEN [ Enter name(s) of the Applicant(s) ] Applicant(s)
AND [ Enter name(s) of the Respondent(s) ] Respondent(s)
This application is brought pursuant to section [ 213 or 246ZA ] of the
Restructuring & Insolvency
PRECEDENTS
INSOLVENCY ACT APPLICATION NOTICE
Note: Use with an application notice template compliant with the Insolvency (England and Wales) Rules 2016, SI 2016/1024 (Form IAA), IR 2016, r 1.35...
Case No: [insert]. [In the High Court of Justice, Business and Property Courts (Insolvency and Companies List (ChD)) in England and Wales or in [location]; or in the County Court at [location], Business and Property Work]...
In the matter of [bankrupt’s name] (In Bankruptcy) and the Insolvency Act 1986. Between [Applicant(s)] and [Respondent(s)]. Application under section 284...
Applicant(s): [names/addresses]. Respondent(s): [names/addresses]. The application concerns [details of the relevant bankruptcy]. To be heard by [level of judge] at [court/hearing centre]. Within existing insolvency proceedings? YES/NO. Court reference: [insert]...
Declaration that [the disposition] is void under section 284.
Order restoring the position as if the disposition had not occurred.
Order that the Respondent(s) pay the Applicant(s)’ costs.
Further or other relief as the Court
Restructuring & Insolvency
PRECEDENTS
Note: Use this precedent together with an application notice template that accords with and complies with the Insolvency (England and Wales) Rules 2016, SI 2016/1024—see also:
(Form IAA) IR 2016, r1.35 VAR Insolvency Act Application Notice
Application notice in insolvency proceedings (corporate)
In the matter of the insolvency act 1986 Application Notice
Company name
Company number [ Insert company number ]
[ Insert name of court ]
For court use only
Court case number:
Between
Applicant [ Name of Applicant (usually the company ]
and
Respondent Petitioning Creditor
Is this application in insolvency proceedings already before the court? [ Yes OR no ] [ .......................
...
Restructuring & Insolvency
CHECKLISTS
Obtain necessary information to draft statement in support of application for validation order:
a search of the company’s records
a duplicate of the winding-up petition
particulars of the debt and, if contested, particulars of the dispute
current accounts and forecasts, with bank account statements
information on the intended dispositions (including continuing trading where relevant) and/or transfers, together with supporting documentation
if the asset is a property, identification of the property, including title numbers
valuation evidence where any asset is to be disposed of
See Practice Note: Validation orders—dispositions of property after commencement of winding up.
Draft:
a supporting witness statement from a director or officer of the company who is closely acquainted with the company’s affairs and financial position. Where appropriate, corroborating evidence from the company’s accountant should also be provided...
Restructuring & Insolvency
CHECKLISTS
The Corporate Insolvency and Governance Act 2020 introduced, on a temporary footing, substantial restrictions on a creditor’s ability to pursue a winding-up order against a company. For guidance on the position prior to 1 October 2021, see Practice Note: Corporate Insolvency and Governance Act 2020—temporary changes to corporate statutory demands and winding-up petitions [Archived]. For the regime applying from 1 October 2021 to 31 March 2022 (which included a higher threshold for petition debts and required a creditor to give 21 days’ notice of an intention to present a winding-up petition), see Practice Note: Corporate Insolvency and Governance Act 2022—winding-up petitions from 1 October 2021 to 31 March 2022 [Archived].
Serve statutory demand
Prepare a statutory demand that contains the particulars mandated by rule 7.3 of the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024 (see Practice Note: Company statutory demand), and
Restructuring & Insolvency
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