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Corporate Borrowing, joplin proviso - usually included in order allowing…

- - - - non-registration
        
        extension of time
        
        417- only granted where delay accidental or inadvertance - has to be just and equitable to grant
        
        breamar investment ltd
        
        frank bell and sons - clean hands - full disclosure
        
        international retail before granting extension evidence required that no winding up order or unpaid judgments
        
        telford motors court set aside order to protect unseucred creditors
        
        farm fresh frozen foods discretionary and without prejduice to rights of parties who actually registered
        
        vicotria housing estates court dislikes if delay deliberate to see which wya wind blowing
        
        bramer investment granted ex=parte. solvent. wouldn't be able to register charge if resolution for windingup passed. fairest option
        
        courtney - when late registration permitted should be done without prejducie to rights of others
        
        doesn't void charge - but if another creditor exists whose registered lose prioirty status
        
        automatically void and debt it secures becomes repayable
        
        monolithic building original charge unregistered, subsequent charge holder knew this and registered knew charge - took priority
        
        void agaisnt liquidator or creditors, but doesn't remove debt
      - process
        
        415 - certificate of registration is conclusive evidence of registration
        
        missing particulars
        
        can apply for rectification - 417
        
        national provincial v charnley company granted charge over leaseholder interest in land which factory built - covered equipment used, but equipment not mentioned in particulargs - the certificate is conclusive of what was created
        
        shannonside holdings certificate meant properly registered and enforceable to amount provided for by it
        
        eric holmes certificate conclusive - delibery of particulres even if incorrect still valid
        
        Lombard v Amurec even if confusion over original date, as legislation states conclusive
        
        potential constiutional issue mentioned in Amuerec dismissed by Courtney permissible delegated judicial power
        
        judicial review only possible if mala fides fraud or improper purpose Central Bank of India
        
        s 409
        
        details in prescribed form to CRO
        
        intention to create charge, then notify of actual creation within 21 days - charge valid from intention to create being sent to CRO - 2 stage process
        
        1 stage process
      - purpose
        
        give protection to lenders allows them to see if assets already has a charge - creditors can look it up
        
        gives priority - if not registered not enforceable agaisnt liquidator
        
        Esberger and Son ltd v capital and counties bank object of registration - show what monies are owing by company on certain securities (void as not registered in 21 days)
        
        gives creditors clearest possible view of charges on company assets
        
        CLRG recommendation followed in 2014 act that all charges be registerable
      - register of all charges with CRO
        
        list of all charges
      - can't claim didn't know about registerable charge
      - who registers
        
        410 - the company duty to, but lender can also register
        
        anyone
      - order of priority - 412
- - - - courtney - death knell for proceeds of sale clauses
- - - - ambulatory and shifting in nature hovering over asset until some event occurs which causes it to settle and fasten on subject
    - - class of assets present and future
      - changing from time to time in course of business
      - company can do what it wants with it
    - - Creation printing ltd can show valid if solvent immediately after creation - onus on holder
      - can crystalise before winding up
      - if created within 12 months but crystallised in advance then invalid - mace builders holder of floating charge appointed receiver, court held insolvent when created - not valid
  - - - over large fixed assets
      - charge on identifiable property
      - boorrowing company can't deal with charged asset without consent of charge holder
      - ranks in priority over other charges
    - - all money due and oweing to company at a time
      - keenan brothers objective situation of what was actually happening - if actual restrictions which limit ability to deal with book debts then fixed debt (endorsed spectrum ) look at substance rather then label - specially designated bank acount
      - response engineering - all income anticipates from normal course of business (future income from sales of goods and services_
      - fixed v floating
        
        armagh shoes no restriction - charge floating
        
        lakeglen construction clause in debenture, some fixed, some over book debts, company insolvent when created - court held - if intended to remain dormant and company permitted to receive and use book debts until then then a floating charge
      - Irish position
        
        wogan (drogheda) at odds with keenan and spectrum- seems to award delay or slackness - hadn't got around to making bank account which was in terms to be set up - fine as long as intended to - SC decision seems to be an outlier (according to Courtney)
        
        re holidair payment into account selected by debenture holder - no ban on withdrawals from account - charge considered to be floating - account never utilised - could be used in normal business - met 3 characteristics - distinguished on facts to wogan
      - UK position
        
        spectrum plus followed Keenan - existence of ban on accessing account could make charge a fixed charge - in this case no restriction on account use so floating charge
        
        siebe gorman - very subjective approach - charge required seperate account, restricted withdrawals - fixed charge
      - purcell as gixed charges have better protections companies wanted to stretch what could be included
  - - - appointment of receiver
        
        halpin v cremin irish case - receiver appointed - all floating charges crystallise
        
        re interview
      - express crystallisation
        
        JD Brina crystalise with giving of notice - included in debenture
        
        wogan's drogheda authority for giving notice
      - automatic crystallisation cause
        
        beyond giving notice
        
        courtney - different to express operates on given event happening
        
        JD O'Brien had express and automatic clauses
        
        red meat keane j - need active steps to enforce security before liquidation - automatic crystalisation can present problems as creditors have no actual notice
      - commencment of winding up
        
        appointment of liquidator
        
        JD Brian crystallisation did have effect
        
        componton and co
        
        latzur ltd receiver appointedd, sought direction if on floating charge or crystallised - held under fixed cahrge (clear intention of conversion) - re-crystalised after examinership failed
      - cessation of business
        
        not expressly approved in Ireland - but likely to be materialised
        
        real meat co
      - decrystallisation
        
        re holidair crystalised as receiver appointed, but decrystallised as examiner appinted
        
        latzur can re-crystalise if examinership unsuccessful
        
        courtney - unconvinced - matter of control - should be based on debenture if capable of being decrystalised
    - - JD Brian floating charge, notice to crystalise (automatic clause), company than wound up - if bank could leap frog on basis floating charges crystalised prior -= SC once crystallised prior to winding did rank in priority
      - 2017 companies act - ammended 621 - preferential creditors now priority over crystalised shares
    - - if debt paid in full
- - - - allows financial institutions to advance funds as priority guaranteed
  - - - re bramer not possible if already insolvent
- - - - single - individual loan
      - series of debentures- standard terms and conditions
      - debenture stock