JOINT INSOLVENCY EXAMINATION BOARD

Transcription

1 JOINT INSOLVENCY EXAMINATION BOARD Joint Insolvency Examination (Scotland) Monday 2 November 2009 LIQUIDATIONS (3.5 hours) ANSWER ALL FOUR QUESTIONS QUESTIONS 1 AND 2 CARRY TWENTY MARKS EACH QUESTIONS 3 AND 4 CARRY THIRTY MARKS EACH SUBMIT ALL WORKINGS The Examiner will take account of the way material is presented. Candidates should answer the questions set - and marks will not be awarded for extraneous material. Note: References to legislation are to that which was in force on 30 April References to the Act are to the Insolvency Act 1986 as amended. References to Sections, Schedules and Rules are to Sections and Schedules of the Insolvency Act 1986 and to Rules of the Insolvency (Scotland) Rules 1986 as amended. References to Sections and Rules of other Acts, Regulations and Orders will mention the Act, Regulation or Order. JIEB/LIQUIDATIONS/2009S Page 1 of 7

2 1(a) Outofmoney Ltd ( the Company ) was placed into Administration, pursuant to Schedule B1, paragraph 22, on 6 November Under a term of the proposals the Administrator was to be appointed Liquidator. On 30 October 2009 the Administrator sent Form 2.25B(Scot) (Notice of move from Administration to Creditors Voluntary Liquidation) to the Registrar. Set out the legal and practical steps that the Liquidator should take during the first week of the Liquidation. (4 marks) 1(b) Hardtimes Ltd ( the Company ) was placed into Creditors Voluntary Liquidation on 26 October There is a defined benefits pension scheme for the 105 members of staff. There are three trustees: the Company, one of its directors and an employee (being a member nominated trustee). (i) (ii) Set out the duties of the Liquidator in relation to the pension scheme. (4 marks) Set out the issues that the Liquidator may encounter because the Company is one of the trustees. (2 marks) 1(c) Upwards Plc ( the Company ) has a number of dormant subsidiaries that it no longer requires. The finance director is considering the options of arranging for these companies to be struck off the Register at Companies House, or for them to be placed into Members Voluntary Liquidation. Set out, with reasons, the matters to consider before deciding which procedure to recommend. (6 marks) 1(d) Gordon, Freda and Libby are the only designated members in a firm of architects, Luckless LLP ( the LLP ). The March 2009 management accounts revealed a deficit of 1.5 million: the members had hoped to clear the deficit by increasing income but revenues had continued to decline. In May 2009, unbeknown to Freda and Libby, Gordon had received, on behalf of the LLP, a claim against the LLP for negligence for 1 million in respect of a building he had designed. Only half of the amount of this claim is covered by Professional Indemnity Insurance. Last week the LLP entered Creditors Voluntary Liquidation with a shortfall to creditors of 2.1 million. Set out what remedy or remedies the Liquidator may have against the members and, in particular, against Gordon, for his failure to inform his co-members of the negligence claim. (4 marks) (20 marks) JIEB/LIQUIDATIONS/2009S Page 2 of 7

3 2(a) Edamy Ltd ( the Company ), which had traded as Byalot for over twenty years, entered Creditors Voluntary Liquidation on 28 October Edward and Amy, the Company s only directors and shareholders, wish to purchase the undertaking and assets from the Liquidator and to trade using the name Byalot. Edward has consulted a solicitor who has advised that the purchase be made by Edward s wife, Harriet, through an off-the-shelf company, Newco Ltd, with Harriet and Amy as equal shareholders and directors, and that Newco Ltd s name should then be changed to Byalot Ltd. Edward wants to follow his solicitor s advice and has asked Amy and Harriet to consent to this proposal. He has explained that the organisation and running of Newco Ltd would be identical to that of the Company. Harriet agrees but has said that she has no interest in taking any part as either a director or shareholder and is content to do what Edward has asked. Amy has sought your advice on Edward s proposal. Draft a letter to Amy on the implications of her agreeing to the proposal (do not set out the detailed procedures). (8 marks) 2(b) In the year leading up to the Liquidation of the Company you, as Liquidator, ascertain that the following had occurred: In January 2009, a shareholders meeting decided not to re-appoint Frances, who had acted as a non-executive director, for the preceding two years. During that time, Edward and Amy claimed that Frances had made detrimental decisions about the running of the Company without consulting the other Board members. In February 2009, the directors informed customers that they would reduce the Company s payment terms from 60 to 30 days. At the same time, and without notice, they started to pay suppliers after 90 days rather than after 60 days. A dividend to shareholders of 100,000 was declared and paid in May In June 2009, Edward was considering closing a small branch of the Company. The costs of closure were estimated to be 15,000 but estimated savings were approximately 50,000 a year. Edward s brother, John, persuaded Edward to keep the branch open as John s business was a key supplier to the branch. In July 2009, Amy had agreed a new contract for the cleaning of the Company s premises. The cost was 100,000. The previous contractors had bid 120,000 for the work, the higher price seemed to be attributable to the more environmentally friendly cleaning substances used by the unsuccessful bidder. In September 2009, Edward purchased the Company flat for 150,000. The flat was purchased by the Company in August 1990 for 150,000. In the year to 31 October 2009, some customers paid a 20% deposit. The deposits were placed in the Company s bank account which was overdrawn throughout the year. On the date of liquidation customers who had paid deposits, but had not received any goods, amounted to 93,000. On 2 March 2009, the Company granted a floating charge over its assets and undertaking to Flip Ltd. Flip Ltd was a major supplier and was owed 400,000 on 2 March 2009 and 500,000 on 31 October In respect of each of the above matters set out, with reasons, whether or not the Liquidator should include them in reports under section 7(3) of the Company Directors Disqualification Act 1986 or what further information he would require in order to decide. (12 marks) (20 marks) JIEB/LIQUIDATIONS/2009S Page 3 of 7

4 3. Following your meeting a week ago with the three directors of Marshalsea Ltd ( the Company"), they have requested that you assist them in convening meetings of its members and creditors to place it into Creditors Voluntary Liquidation. There are no secured creditors. You are confident that you have sufficient creditor support to be appointed Liquidator. The statement of affairs indicates that the shortfall is 3.5 million and the realisable value of the assets is 120,000. You expect that the creditors meeting will be well attended. During the past week, you have received several telephone calls from creditors expressing suspicions that the directors have diverted considerable assets and funds from the Company for their personal use. Several debtors have also telephoned to say that some of the goods delivered by the Company are faulty and that they are not prepared to pay the full amount owing. Seven people have approached you expressing an interest in becoming members of the Liquidation Committee, if the creditors resolve that one should be formed: Burt, a creditor, is owed 250,000. He has indicated that once the Company is in Liquidation he wishes to make an offer of 70,000 for the assets and undertaking of the Company. Brad claims he is owed 1,000 in respect of an amount that became payable in August The list of creditors accompanying the statement of affairs does not include Brad as a creditor. Harrison, a director, is owed 33,000 in respect of a loan account with the Company. Johnny, a shareholder, holds 40% of the shares in the Company. Johnny is upset that the Company is being placed into Liquidation and that he has lost a lot of money. Johnny lives in Bermuda but has said that he will be happy to attend all committee meetings provided that he can reclaim his travel costs. Daniel, an employee dismissed for gross misconduct three months ago, is claiming 100,000 for breach of contract. This amount is not included in the list of creditors. Piers has a cleaning contract with the Company. Payment of 8,000 will be due in accordance with the contract in two months time. Matt purchased about 60% of the Company s output for re-sale to customers. The Company gave a two year warranty for the goods, if any were returned by the customers either to Matt or to the Company. During the past year three customers had returned faulty goods under warranty, claiming a total of 5,000 and all of these had been paid by the Company. Set out: (a) (b) (c) (d) the reasons why the appointment of a Liquidation Committee could facilitate the process of this Liquidation. (4 marks) the formalities of appointing a Liquidation Committee. (3 marks) a recommended agenda for the first Liquidation Committee meeting. (5 marks) the reasons whether or not each individual listed is eligible to be a Liquidation Committee member. (18 marks) (30 marks) JIEB/LIQUIDATIONS/2009S Page 4 of 7

5 4(a) Downtrodden Plc ( the Company ) was placed into Creditors Voluntary Liquidation on 1 June The Liquidator has realised all of the assets as follows: Plant & machinery 70,000 Stocks 20,000 Book debts collected 50,000 Total realisations 140,000 In addition bank interest of 600 has been received from Busybank Plc The payments made by the Liquidator are: Fee approved for convening Section 98 meeting of creditors 2,900 Statutory advertising 1,000 Agent s valuation and sale fees 5,000 Bank fees and charges Busybank Plc 100 9,000 The Liquidator s time costs of 7,500 have not yet been invoiced. Further costs, including taxation incurred during the Liquidation, and which have not yet been paid, amount to 3,500. The creditors in the Liquidation are: Preferential 20,000 Floating charge holder - Anytown Bank Plc 120,000 Unsecured 900,000 Total creditors 1,040,000 After reviewing the books and records and other information, the Liquidator considers that there is a reasonable prospect of recovering a further 200,000 through pursuing an action against the directors under the provisions relating to voidable transactions and/or malpractice. The costs of taking such action would be approximately 70,000, including the Liquidator s time costs of approximately 10,000. In addition, the Liquidator has concerns about the validity of Anytown Bank Plc s floating charge but believes that the Bank will defend any challenge to its charge and that the costs of taking any action, including Liquidator s time costs would be a further 50,000. Set out the considerations that the Liquidator should take into account in deciding whether to pursue each of the actions. (10 marks) JIEB/LIQUIDATIONS/2009S Page 5 of 7

6 4(b) Mr & Mrs Losing are the only directors and shareholders of Losinglots Ltd ( the Company ) which supplies plumbing and general building services. A winding up petition was served on the Company on 30 July Mr Losing did not understand its significance and filed the paperwork amongst many other letters from creditors demanding payment, together with two statutory demands. The Company continued to trade until a winding up order was made on 30 September You were appointed as interim liquidator by the court and as liquidator at the section 138 meeting. You ascertain: (1) The Company had an account with Villagetown Bank plc ("the Bank"). In the two months to 30 September 2009, the statement in respect of the Company's account with the Bank showed the following entries: Receipts Payments Receipts from customers 15,000 Receipts from debtors (at 30 July 2009) 1,000 Payments for building materials supplied since 30 April ,000 Payment to creditors (at 30 July 2009) 25,000 Directors loan repayment 3,000 Wages 20,000 Vehicle costs 1,000 Bank interest and charges 4,000 (2) The Statement of Affairs shows realisable values at 30 September 2009 as follows: Tools & equipment 42,000 Motor vehicle 5,000 Receivables 23,000 Stock 10,000 Villagetown Bank overdraft (120,000) Preferential creditors employees (11,000) Other creditors (75,000) (3) The account with the Bank has been overdrawn for the past year. The Bank has a floating charge, which was granted on 5 February 2004, and Mr Losing has given a personal guarantee of 100,000. (4) On 5 August 2009 Sheriff Officers attached various items of equipment as a result of nonpayment of a debt for 2,300. On 20 September 2009 the equipment was sold at auction for 1,000, net of costs. The Sheriff Officers are holding the 1,000. (5) On 2 October 2009, the Landlord served you with notification that he was exercising landlord s hypothec over all assets on the premises, in respect of non-payment of rent of 25,000, due on 24 June (6) Apart from collections of receivables of 5,000, no assets have been realised since 30 September JIEB/LIQUIDATIONS/2009S Page 6 of 7

7 (7) The estimated costs of the Liquidation are: - Liquidator 5,000 - Agent 1,000 - Solicitor 1,000 - Statutory advertisting and other costs 2,060 (i) (ii) Set out, with reasons, what funds the Liquidator may recover for the benefit of creditors. (12 marks) Calculate the amount available for distribution to each class of creditor after payment of costs and expenses, stating any assumptions that you make and indicating the shortfall, if any, to each class of creditor. (8 marks) (30 marks) NOTE: Ignore VAT JIEB/LIQUIDATIONS/2009S Page 7 of 7