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John McDonnell QC at 13 Old Square Chambers discusses the judgment in Pui-Kwan v Kam-Ho and its implications for insolvency practitioners who agree to be appointed administrators out of court by a company or its directors.
Pui-Kwan v Kam-Ho and others  EWHC 621 (Ch),  All ER (D) 133 (Mar)
The Companies Court held that a company had never been placed in administration where a meeting of its directors, purporting to enter it into administration, pursuant to the Insolvency Act 1986 (IA 1986), Sch B1, para 22(2), had been inquorate.
The application concerned a BVI company (Melodious Corporation) which the parties, who were both from Hong Kong, acquired in 1995 to hold their intended matrimonial home in England. They separated in 1998 which resulted in litigation reported as Chan v Leung  All ER (D) 455 (Nov) and  EWCA Civ 1075 where the full history can be found. Mr Leung (who held 49% of Melodious) sought to have it wound up and Miss Chan (who held 51%) sought to establish a beneficial interest in the house and the right to remain there until she finished a course of studies. Miss Chan was successful and the court held:
Six years after the conclusion of that litigation Mr Leung had returned to Hong Kong and become bankrupt, the house was still unsold and Miss Chan was advised to consult an insolvency practitioner. He advised her to register Melodious as an overseas company with a UK branch (in order to establish jurisdiction under IA 1986) and then put it into administration with him as administrator. She was able to do so because the directors were herself and her mother—so Melodious was purportedly put into administration by its directors in late 2007 and Miss Chan went back to Hong Kong leaving the administrator in charge.
Two and a half years later, nothing had been achieved and Miss Chan was dissatisfied. By then the administrator was claiming to have become the liquidator by filing a conversion notice under IA 1986, Sch B1, para 83—but it was observed by Miss Chan’s new solicitors that he had filed a conversion notice under para 84 by mistake, with the result that Melodious was deemed to be dissolved (even though it was in perfectly good standing in the BVI). It was also noticed that the minutes of the board meeting, where it was resolved to go into administration, and which the administrator had prepared himself, only showed one director present (Miss Chan), even though the articles provided that if there were only two directors the quorum for a board meeting was two.
The questions for the Chancellor were:
There were factual issues because the administrator claimed that:
Having received oral evidence from the three persons concerned, the Chancellor did not believe that Miss Chan’s mother was at the board meeting, though he accepted that if she had been present she would have supported Miss Chan. He did, however, believe ‘albeit with hesitation’ that the administrator had sent off a conversion notice in the correct form before the administration expired—though it could not be established that it had reached the Registry at all or (if it did) whether it had arrived in time.
So the two legal issues were:
As to the first issue, he held that the purported appointment of the administrator was a nullity which could not be saved under rule 7.55. He followed previous decisions in Re Frontsouth (Witham) Ltd (Henderson J)  EWHC 1668 (Ch) and Re Euromaster Ltd (Norris J)  EWHC 2356 (Ch) in holding that rule 7.55 cannot be used to remedy a defect or irregularity in the process of entering administration since in such a case there are no ‘insolvency proceedings’ to start with. He also referred to Minmar Ltd and another v Khalatschi  EWHC 1159 (Ch),  All ER (D) 99 (Oct) where Sir Andrew Morritt C reached the same conclusion as to the effect of an attempt to appoint an administrator at an inquorate board meeting, though by reference to different remedial provisions in IA 1986 itself.
As to the second issue, which it was not strictly necessary to decide in view of the outcome of the first issue, he held that an administrator can effectively ‘send’ a conversion notice to the Registrar within the meaning of IA 1986, Sch B1, paras 83(3) or 84(1) even if the notice arrives at the Registry after his appointment has expired. The Chancellor followed a statement by Judge Purle QC in Re Property Professionals + Ltd  EWHC 1903 (Ch),  All ER (D) 110 (Jul) which was actually obiter since on the facts in that case the notice was received a few hours before the administration expired. In view of the outcome of the first issue, he did not go on to resolve the problems in the case before him arising out of the fact that there was no evidence that the right conversion notice (ie the copy sent before the administration expired) was ever received by the Registrar and the fact that the wrong notice was actually registered (the problem there being that under the relevant transitional provisions the power to rectify the Register under the Companies Act 2006, ss 1093–7 are only exercisable in relation to documents delivered to the Registrar on or after 1 October 2009 and our events were in October 2008).
The judgment is helpful in respect of the first issue because it shows that the appointment of an administrator by a company or its directors which does not comply with the formal requirements of the company’s constitution will be irredeemably null and void even if the formal requirements could easily have been satisfied had they not been overlooked. In the previous cases that was not so starkly clear.
The judgment is interesting in respect of the second issue, though it will be strongly arguable in another case that the conclusion of the Chancellor (and Judge Purle QC) was contrary to the reasoning in the ratio of the Court of Appeal’s decision in Re Globespan Airways Ltd  EWCA Civ 1159,  All ER (D) 144 (Aug), where Arden LJ (with whom the other members of the court agreed) explained very clearly that ‘sending’ and ‘filing’ are distinct and different concepts in IA 1986, Sch B1 and that what is required before the statutory period for ‘registration’ can be extended by what is now called ‘the Globespan extension’ is receipt of a conversion notice by the Registrar as recorded by the affixing of the Registry’s label including the date and bar code.
The practical lessons to be learned from this case are:
John McDonnell QC’s main areas of practice are chancery, company, insolvency and commercial litigation. In addition to these four broad areas, the cases John has appeared in have included other areas of law, from human rights and judicial review to medical negligence to ports and rivers. He regularly acts overseas and has particular experience of conducting litigation in Hong Kong. In Pui-Kwan v Kam-Ho and others John was counsel for the applicant.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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First published on LexisPSL Restructuring and Insolvency
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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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