Nero 8 essential
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The judge referenced paragraph 11(a) of Schedule B1 to the Insolvency Act 1986 in relation to the making of an administration order which is also expressed so as to require the court to be satisfied (in that case on whether the company is, or is likely to be, unable to pay its debt and whether the administration order is reasonably likely to achieve the purpose of the administration) and noted that this had been construed to be a test on the balance of probabilities. that the burden lies upon the propounder of the scheme to exclude all realistic possibility of a better outcome for a dissentient creditor under the realistic alternative”. The judge expressly stated that he did not think “ that these passages justify the submission that Counsel for Crowdstacker based upon it viz. The court concluded, noting the language in the legislation which requires the court to be “satisfied” as to the ‘no worse off test’, that where the court is required to be satisfied, it is normally satisfied on the balance of probabilities. The administrators on the other hand contended that the test ought to be based on the balance of probabilities. The court ultimately disagreed with this but in so doing dealt with a point of contention between the parties as to the evidential standard that had to be met.Ĭrowdstacker contended, drawing on Re Hurricane Energy plc EHC 1759, that the administrators had to demonstrate that there was “no real prospect” of a better outcome under the relevant alternative. No Worse Off Test – what is the standard of proof?Ĭrowdstacker, in challenging the plan, sought to argue that it would be worse off in the plan than in the relevant alternative (an immediate liquidation). This is perhaps a surprising result, but effectively treats Crowdstacker’s vote as if the individuals had all voted, and had all voted against – like Crowdstacker did, and to consider the fairness of the plan in that context (to avoid the need to revisit the plan voting). The court however, did not consider that it was necessary to revisit the class vote because of this potential error, stating that “ it is not appropriate to require detailed argument on the issue if a pragmatic alternative can be found…the pragmatic alternative is to treat Crowdstacker’s objection to the scheme as being the objection of the remaining 417 individual investors…and to examine whether that should stand in the way of sanction”. The court expressed doubts, suggesting that there was a strong argument that the individual investors retained their proprietary rights as ultimate beneficial owners of the debt, and as such should have had the right to vote in the plan. Crowdstacker made these notifications and argued that this meant it was solely entitled to appear as creditor in the plan meetings.
Nero 8 essential pro#
By reason of the crowdfunding platform’s terms and conditions, Crowdstacker was able to notify the individual creditors and novate Amicus’ obligations to the security trustee (with the individual’s creditor position replaced by a promise of the security trustee to pay a pro rata share of any recoveries minus its costs). In response, Crowdstacker had sought to ‘novate’ the individual investors claims and place itself in the position of having sole right to attend the plan meetings. Now, with the benefit of the court’s written reasoning, there are certain additional points to draw out which will be of interest to insolvency practitioners and officeholders.Ĭlass Composition – what happens if the “wrong” creditors vote on the plan?Īt convening, Snowden J (as he then was) cast doubt on whether one of the secured creditors (“Crowdstacker”, a crowdfunding platform) was indeed the relevant creditor or whether the individual platform investors might in fact be the true creditors. This plan was interesting for a variety of reasons – not least because it was the first restructuring plan utilised to exit administration and the first restructuring plan of an SME. New funds would be injected, lump sums would be paid in satisfaction of administration ‘expense’ creditors and preferential creditors and secured and unsecured creditors would be paid dependent on recoveries from legacy loans in Amicus’ book. The administrators faced running out of cash, so they proposed a restructuring plan as the alternative to a conversion into immediate liquidation. To summarise, Amicus is a property finance company which entered administration in late 2018. On 15 November 2021, the judge handed down his reasoning for sanctioning the plan. In August 2021, Sir Alistair Norris sanctioned the restructuring plan of Amicus Finance PLC ( Amicus) ( as we wrote about at the time).