Application by a secured creditor to enforce his security/bring proceedings during an administration
| Author | Mark Watson-Gandy |
| Pages | 227-237 |
OBJECTIVE
The conduct of an administration precludes a secured creditor from enforcing his security.
Similar provisions apply to bar, during the course of the administration (without either the consent of the administrator or permission of the court), the repossession of the company’s goods,
When considering whether to grant permission, the court will balance the proprietary interests of the secured creditors against the interests of the unsecured creditors.
EWHC 2553 (Ch).
228 Corporate Insolvency Practice
APPLICATION
The application is made by application notice on Form IAA. The administrator should be named as respondent to the application.
COURT FEES
Where fresh proceedings need to be brought, a court fee of £280 is payable.
the application can be made as part of existing proceedings and the application is on notice to other parties, a court fee of £155 is payable.
EVIDENCE
The applicant should serve a witness statement in support. This should address:
ƒ the capacity in which the deponent makes the application (e.g. holder of security);
ƒ the nature of the applicant’s interest;
ƒ the value of the asset;
ƒ the nature of the security if any;
ƒ the value of the debt owed to the applicant;
ƒ what steps the applicant wishes to take;
ƒ how the applicant’s entitlement arises (but for the moratorium) to take the steps he proposes to take;
ƒ the date of the administration order;
ƒ the purpose of the administration;
ƒ that the moratorium created by the administration prevents his taking the proposed steps without the consent of the administrator or the permission of the court;
ƒ whether the administrator’s consent has been sought and his response;
ƒ that the applicant seeks permission from the court;
ƒ the nature of the hardship caused to the applicant by being unable to take the proposed steps;
ƒ how taking the proposed steps will affect the likely achievement of the objectives of the administration;
ƒ how taking the proposed steps will affect the interests of the unsecured creditors;
ƒ the nature of the asset.
The witness statement should exhibit:
ƒ evidence of the interest that the applicant seeks to enforce;
ƒ evidence showing the entitlement to take the proposed steps proposed by the applicant;
ƒ evidence of the level of debt;
ƒ evidence of the value of the asset (if applicable);
ƒ any documents relevant to the issue;
ƒ any documents relevant to the facts upon which the issue arises.
SERVICE
The...
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