Re Saunders (G. L.) Ltd
| Jurisdiction | England & Wales |
| Date | 1986 |
| Court | Chancery Division |
Company - Debenture - Receiver - Appointed by debenture holder - Debentures creating fixed and floating charges - Fixed charges paid off leaving surplus - Company in liquidation - Whether surplus to be paid to preferential creditors or to company -
On 23 October 1972, the company granted an all moneys debenture to a bank, thereby creating a fixed charge upon the company's freehold and leasehold property, both present and future, and also upon the company's goodwill and uncalled capital, both present and future, together also with a floating charge upon “the undertaking and all other property and assets of the company both present and future.” It was provided that the charge thereby created should, at any time after the bank should have demanded payment of any money or liability thereby secured, entitle the bank to exercise the power of sale conferred on mortgagees by section 101 of the
On the receiver's summons for directions under section 369(1) of the Companies Act 1948, as to whether the surplus moneys realised ought to be paid to the company's preferential creditors under section 94(1) of the Act or to the company, being the person entitled to the mortgaged property:—
Held, that on its true construction section 94 of the Companies Act 1948 did not defeat the right of the person entitled to the mortgaged property to be paid the surplus arising from the sale of assets subject to a fixed charge; and that, accordingly, the surplus proceeds from the fixed charges were payable to the liquidator in accordance with section 105 of the
The following cases are referred to in the judgment:
Glyncorrwg Colliery Co. Ltd., In re [
Inland Revenue Commissioners v. Goldblatt [
Lewis Merthyr Consolidated Collieries Ltd., In re [
Siebe Gorman & Co. Ltd. v. Barclays Bank Ltd. [
The following additional case was cited in argument:
South Eastern Railway Co. v. Jortin (
SUMMONS
By a summons dated 18 July 1984, Roger Wallis Hatton, who had been appointed receiver and manager of G.L. Saunders Ltd. by Lloyds Bank Plc., under the powers contained in a debenture dated 27 February 1981, sought directions as to whether the surplus of proceeds of the realisation by him of assets of the company the subject of a fixed charge created by and contained in the debenture, remaining after the discharge of the company's indebtedness to Lloyds Bank Plc. and of his disbursements and remuneration should be applied by (i) discharging the liabilities of the company to its preferential creditors according to their respective entitlements pursuant to section 94 of the Companies Act 1948 and (ii) thereafter paying the surplus (if any) to the liquidator of the company or by paying the surplus to the liquidator. The respondent to the summons was Barry Ward, as liquidator, and the application was made under section 369 (1) of the Companies Act 1948 and
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