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Examinership - Coggle Diagram

- - - - crucial case confirming leases can be repudiated; made examinership attractive to multi-unit retail chains
    - - Choice of leases to repudiate must be based on objective reasons, not simply protecting sites with parent guarantees
  - - - Appointment of examiner can de-crystallise a crystallised floating charge, reversing orthodox view that crystallisation is final
- - - - s.509 now requires “reasonable prospect of survival”, proven on the balance of probabilities.
- - - - Company had defrauded Revenue, breached company law and employment obligations.
      - Court refused examinership even though there was some prospect of survival and no objection from creditors – public policy: delinquent companies should not benefit from rescue legislation.
    - - Property developer indebted > €1bn; projections relied on by independent expert were unrealistic given property crash; valuations out of date and not truly independent – petition dismissed.
    - - Company not expected to be insolvent for six months;
      - Court considered petition premature, particularly as company had not sufficiently tried to renegotiate “over-rents” with landlords before invoking examinership.
- - - - It appears to the court that the company is or is likely to be unable to pay its debts.
      - “Likely to be” interpreted to include future insolvency (e.g. Re New Look Retailers (Ireland) Ltd – Covid-related future insolvency accepted in principle).
    - - No voluntary or compulsory winding-up is already underway.
    - - Court must be satisfied there is a “reasonable prospect of the survival of the company and the whole or any part of its undertaking as a going concern.”
      - This “reasonable prospect” language was inserted in 1999, replacing an earlier looser test