Sophie Rebecca Perhar v Louise Freestone & Ors
[2024] EWHC 945 (Ch)
Peter Wilkinson v Gavin Maher & Ors
29 November 2024
[2024] EWHC 2948 (Ch)
High Court
A business owner challenged the takeover of his company by a lender. He claimed the lender promised not to take over for a year but broke its promise. The court ruled against the business owner because the lender had a right to take over due to other serious issues. The court found that the business owner was not a credible witness.
Key Facts
- •Peter Wilkinson challenged the validity of the administrators' appointment of Pocket Renting Ltd.
- •Administrators were appointed out of court by Trimont Europe Limited on Macquarie's behalf.
- •Wilkinson argued Macquarie's floating charge was unenforceable and that Macquarie had an improper motive.
- •Macquarie and Wilkinson had a loan agreement with significant asset disposal requirements.
- •Wilkinson claimed Macquarie made representations at a lunch meeting (Ivy lunch) that they would not take enforcement action in the first year.
- •Wilkinson alleged breaches of the loan agreement were not continuing events of default.
- •Macquarie argued other continuing events of default existed, including granting leases without consent and failure to provide fire risk assessments.
- •Wilkinson claimed the loan agreement was void due to common mistake regarding the saleability of properties held on trust.
Legal Principles
Validity of administrator appointment; A debenture holder may rely on any circumstance existing at the time of appointment, even if not expressly relied upon at the time of appointment.
Brampton Manor (Leisure) Ltd v. McLean [2007] BCC 640
Continuing Event of Default; A Default is continuing if not remedied or waived; an Event of Default is continuing if not waived.
Insolvency Act 1986, Schedule B1, paragraph 16 and 81; Facility Agreement, Clause 1.2(d)
Estoppel and Collateral Contract; Requires reliance on the representation.
Case Law (implied)
Common Mistake; Requires a fundamental assumption underlying the contract, and a fundamental difference between the assumed and actual states of affairs.
Triple Seven MSN 27251 Ltd v. Azman Air Services Ltd [2018] 4 WLR 97
Paragraph 81 application (Improper motive); Allegation of improper motive must be made honestly and on reasonable grounds. Court considers whether statutory purpose of administration is likely to be achieved.
Re Aatree Bright Bar Ltd (in administration) [2023] BCC 704; Koon v. Bowes [2019] EWHC 3455 (Ch)
Pleadings; Parties should be held to their pleaded cases.
Dhillon v. Barclays Bank plc [2020] EWCA Civ 619; UK Learning Academy Ltd v. Secretary of State for Education [2020] EWCA Civ 370
Outcomes
Administrators' appointment was valid.
Continuing Events of Default existed, including breaches related to granting leases without consent and failure to provide fire risk assessments. The claimed representations were not proven.
Paragraph 81 application dismissed.
Wilkinson failed to establish Macquarie had an improper motive in appointing the administrators. Wilkinson's evidence was deemed speculative and unreliable. The court found Macquarie acted to protect its financial interests, a legitimate objective within the administration process.
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