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Richard Ritchie, barrister at XXIV Old Buildings highlights the importance of clarifying the construction of a funding agreement following the decision in Re Beppler & Jacobson Ltd.
Re Beppler & Jacobson Ltd; TOC Investments Corporation v Beppler & Jacobson Ltd and others  EWHC 20 (Ch),  All ER (D) 37 (Jan)
The Chancery Division held that the first applicant company’s application for orders requiring it to be reimbursed for fees and other costs incurred in a liquidation would be allowed, where it had advanced money under a funding agreement on the understanding that it would recover the amounts so advanced out of the assets of BJUK, the company in liquidation, either upon the dismissal of the petition or on the winding up of BJUK. Further, the remedy of subrogation would be made available to TOC, since in the circumstances it was the remaining and appropriate way of ensuring that BJUK was not unjustly enriched.
The question in this case was whether a third party who had provided funds to pay for the fees and expenses of provisional liquidators (PLs) could recover those funds from the company. The funds had been provided pursuant to a funding agreement, which did not contain any right of recourse.
The funding, £2.7m, was provided in the context of petition under section 994 of the Companies Act 2006. The funder, TOC, was the parent of the petitioner. The company which was the subject of the petition was referred to as BJUK. PLs were appointed the day the petition was issued. Under a compromise, set out in an order of Newey J (the Newey Order), the respondents were to buy out the petitioner at a price to be determined at a future hearing and, failing payment, BJUK was to be wound-up. The Newey Order provided that on the purchase price
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Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.
Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.
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