Insolvency News And Legal Updates - August 2018

Goldman Sachs International v Novo Banco SA 

Further to our previous article, the Supreme Court has dismissed the appeal of Goldman Sachs and Guardians of New Zealand Superannuation Fund and has upheld the Court of Appeal's decision that a liability of $835m was not transferred out of the failed Banco Espirito Santo. 

In June 2014, Oak Finance Luxembourg SA entered a facility agreement with Portuguese bank Banco Espirito Santo ("BES") to lend approximately $835million ("the Oak liability"), and the agreement contained English law and jurisdiction clauses. The entire loan was advanced in July 2014. 

Following the collapse of BES in 2014, various assets and liabilities (subject to specified exclusions) were transferred to a new financial institution, Novo Banco. Initially, the Oak liability was said to have been transferred to Novo Banco ("the August decision"). Under Article 145-H(2) of the Portuguese Banking Law, no liability can be transferred to a bridge institution if it is owed to an entity holding more than 2% of the original credit institution's share capital. Subsequent investigations had suggested that Oak had entered into the facility agreement on behalf of Goldman Sachs, and that Goldman Sachs held more than 2% of BES' share capital. As a result, a further resolution ("the December decision") determined that the Oak liability had never been transferred to Novo Banco. 

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Despite refusing to recognise proceedings as foreign main proceedings under Article 17 of UNCITRAL Model Law as incorporated into the CBIR, the Court was prepared to grant an extended moratorium against creditors pursuant to Article 21(1) of the Model Law.

The Facts

The case principally concerns Videology Limited (the "Company"), one of a large number of companies to form the Videology group, of which Videology Inc. ("Inc."), incorporated in the US, is the parent company (the "Group"). Although a wholly-owned subsidiary of Inc., the Company was incorporated and registered in England and Wales and operated from a leased premises in London with the objective of expanding the Group's business into the UK, Europe, the Middle East and Africa. 

In 2015 the Group updated its business strategy following increasing competition in the market but found that the transition drained its capital resources despite revenue growths. The Group subsequently tried to secure funding, which eventually fell through in late-2017. 

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Short Stories

House of Fraser bought by Sports Direct for £90 million 

House of Fraser entered Administration on Friday 10 August 2018 and was immediately purchased by retail tycoon Mike Ashley's Sports Direct for £90 million, acquiring all of the UK stores, the House of Fraser brand and all of the stock in the business.

Under the terms of the sale, the group's pension fund was not transferred, and it looks likely that the pension scheme will fall into the Pension Protection Fund, which could see employees losing 10% of their pensions. 

House of Fraser's warehouse operator, XPO, is owed more than £30 million and has stopped processing orders due to a payment dispute. House of Fraser's suppliers are owed £484 million of total debts estimated at £884 million. Sports Direct is not obliged to pay any debts of the business after purchasing it out of Administration. 

House of Fraser have also confirmed they are no longer accepting gift cards issued prior to the Administration. 

Big fashion brands such as Mulberry are owed £2.4 million, All Saints are owed almost £1.8 million, Giorgio Armani almost £1.6 million and Karen Millen are owed more than £950,000. 

Mike Ashley has outlined his plans to make House of Fraser into the “Harrods of the high street” and has vowed to keep 80 per cent of stores open.

Payday lender Wonga in financial difficulties

Wonga, the UK's largest payday lender, has received £10 million of urgent funding from existing shareholders as it is at risk of going into Administration. 

Despite the cash injection, Sky News has reported that Grant Thornton could be appointed as Administrators imminently and on 30 August 2018 announced that it was no longer accepting loan applications. 

Wonga has been loss making for several years, largely due to an increase in the volume of complaints about loans taken out before new rules were introduced in 2014 which has resulted in a rise in compensation payouts.

In 2015, Wonga was ordered to pay more than £2.5 million in compensation to 45,000 customers who were sent letters purporting to be from law firms that did not exist.

Boris Becker Claims Diplomatic Immunity from Bankruptcy 

German tennis champion, Boris Becker was declared bankrupt in June 2017 over sums due to private bank Arbuthnot Latham.  

In April 2018, Becker said he had been appointed as Central African Republic’s attaché to the European Union on sporting, cultural and humanitarian affairs. Becker now claims diplomatic immunity from bankruptcy proceedings on the basis that he is a diplomat for the Central African Republic. However there were reports that his diplomatic passport was not genuine. 

The CAR foreign minister said that he had never signed a document giving Becker official diplomatic status. Only hours earlier the CAR embassy in Brussels had confirmed Mr Becker was one of its diplomats.

Becker's lawyers maintain he cannot be made subject to any legal process unless Central African Republic President Faustin-Archange Touadera specifically lifts his immunity at the request of the British government.

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