Practical Law

Background

In TST Millbank LLC and another v Resolution Real Estate Ltd (8 February 2018) (unreported), the legal and beneficial owners of the head-lease of commercial property (C) brought a claim against their tenant (D) for unpaid service, to which D counterclaimed. D failed to provide security for costs and so, in autumn 2017, judgment was entered for C on the counterclaim. Over the next few months D made a number of hopeless applications, including one to adjourn trial, due to start in early February. On 31 January 2018, two clear days before the start of the trial window, D served a copy of a notice of intention to appoint an administrator (NOI), the effect of which was to impose an interim moratorium pursuant to paragraph 44 of Schedule B1 to the Insolvency Act 1986 (Schedule B1). D waited until 5 February 2018, the first day of the window, to serve the NOI on the qualifying floating charge holder (a connected BVI company), thereby precluding an appointment within the trial window at all. On 5 February 2018, C filed an application for permission, pursuant to paragraphs 44((5) and 43(6)(b) of Schedule B1, to proceed with the trial notwithstanding the moratorium. The application came before Nugee J on 7 February 2018, who granted D’s request for a 24 hour adjournment, simultaneously arranging for trial to be listed to start on 12 February 2018. On the adjourned hearing, the application was granted. Continue reading →