Chancery Division
Baltic House Developments Ltd v Wing Keung Cheung and another
[2018] EWHC 1525 (Ch)
2018 May 17
Judge Eyre QC sitting as a High Court judge
InsolvencyAdministratorAppointment ofCompany applying for appointment of administratorsCompany’s creditors seeking liquidation rather than administration on basis that administration more costlyWhether administration likely to cause unnecessary harm to creditors of companyWhether court having jurisdiction to appoint administrators Insolvency Act 1986 (c 45), Sch B1, para 3(4)(b) (inserted by Enterprise Act 2002 (c 40), Sch 16, para 1)

The company applied to the court for the appointment of two administrators. The application was made in reliance upon, inter alia, paragraph 3(4)(b) of Schedule B1 to the Insolvency Act 1986, namely that an administration order would achieve a better result for the company’s creditors as a whole than would be likely if the company were to be wound up. However, the two petitioning creditors of the company and a substantial body of the company’s investors pressed for liquidation of the company instead on the ground that administration was more costly than liquidation and that would amount to there being unnecessary harm to the creditors of the company as a whole, so that the administrator would not be able to perform his functions and would not be able to achieve his objective under paragraph 3(4)(b) of Schedule B1 to the Act. Accordingly, they contended that the court had no jurisdiction to make the order.

On the application—

Held, application refused. If administration was more costly than liquidation, then that would amount to there being unnecessary harm to the creditors of the company as a whole for the purposes of paragraph 3(4)(b) of Schedule B1 to the Act, so that an administrator would not be able to perform his functions, nor to achieve his objective under the Act and, therefore, there would be no jurisdiction to make the order. However, the test could not simply be whether administration was more costly than liquidation, although that would be a very powerful factor in looking to see whether there was unnecessary harm to the interests of the creditors of the company as a whole. The court also had to take account of potential benefits in administration as opposed to liquidation. An assessment had to be made as to whether, in circumstances where administration was more costly than liquidation, those benefits outweigh the additional cost. If there were benefits in administration which outweighed the additional cost of a liquidation, then in those circumstances the additional cost would not be an unnecessary harm; it would be a potential harm. Administration was likely to be more expensive than liquidation in the particular circumstances of the company and in the light of what was likely to happen in terms of appointment of a liquidator and the approach to be taken. The benefit in administration as opposed to liquidation was marginal at best and that potential benefit did not outweigh the potential harm of the additional expense (paras 29, 30, 31, 43, 44).

Auto Management Services Ltd v Oracle Fleet UK Ltd [2007] EWHC 392 (Ch)

James Morgan QC (instructed by Freeths llp) for the company.

Simon Passfield (instructed by Mishcon de Reya llp) for the petitioning creditors.

Sarah Addenbrooke,

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