TOC Investments Ltd v Beppler & Jacobson Limited and ors


Reference:
[2016] EWHC 20 (Ch)

Date:
8th January 2016

Court:
High Court

Comment:

Robin Hollington QC and Adrian Pay acted for TOC Investments Limited (a subsidiary of the former TNK-BP oil company) in an application to be reimbursed approximately £2,800,000 which it had advanced for the fees and expenses of provisional liquidators of Beppler & Jacobson Limited (‘BJUK’) (a company which owns two prestigious hotels in Montenegro which was the subject of a minority shareholders petition in the proceedings Caldero Trading Limited v Beppler & Jacobson Limited [2013] EWHC 2191 (Ch), [2014] EWCA Civ 935 in which Robin Hollington QC and Adrian Pay acted for the petitioner)

Pursuant to a partial compromise of the petition, it was ordered in 2012 (‘the Newey Order’) that, after a share buy-out and the dismissal of the petition, the costs of the PLs be paid by BJUK. TOC shortly thereafter entered into a funding agreement with the PLs and BJUK which provided for the ‘advance’ of monies for the costs of the PLs. TOC advanced c. £2,800,000 in relation to the costs of the PLs before BJUK emerged from provisional liquidation at the end of 2014, Caldero’s shares having been purchased by the majority shareholders pursuant to the Newey Order. The shareholders of BJUK maintained that TOC had no right to be reimbursed for the costs of the provisional liquidation. Hildyard J held that, while the Funding Agreement had no express provision for repayment, it was clear from the factual context, that TOC was not making a gift but it was intended that TOC have recourse. The agreement was premised on such a right, to which the Newey Order and Rule 4.30 of the Insolvency Rules gave expression and the mode and means of enforcement. Alternatively, TOC was entitled to be subrogated to the PLs’ rights to payment under the Newey Order or Rule 4.30.

 

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