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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Business Mortgage Finance 6 Plc v Greencoat Investment Ltd & Ors [2019] EWHC 3900 (Ch) (11 July 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/3900.html Cite as: [2019] EWHC 3900 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
FINANCIAL LIST (ChD)
Fetter Lane London EC4A 1NL |
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B e f o r e :
Between :
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BUSINESS MORTGAGE FINANCE 6 PLC | Claimant | |
- and - | ||
GREENCOAT INVESTMENT LIMITED & OTHERS | Defendants |
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Lower Ground, 18-22 Furnival Street, London, EC4A 1JS
Tel No: 020 7404 1400
Web: www.epiqglobal.com/en-gb/ Email: [email protected]
(Official Shorthand Writers to the Court)
MR T QURESHI (instructed by Singhania & Co) appeared on behalf of the Defendants
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Crown Copyright ©
MR JUSTICE ZACAROLI:
(1) On 20 June 2019, GIL, purporting to act as noteholder, purported to appoint the second and third defendants, Greencoat Holdings Limited ("GHL") and Portfolio Logistics Limited ("PLL") as separate and/or co-trustees of the Notes and purported also to appoint PLL as an agent of BNY.
(2) On 24 June 2019, GIL purported to direct BNY as note trustee to accelerate the Notes and to appoint administrators of the issuer under paragraph 14 of Schedule B1 to the Insolvency Act 1986.
(3) On 27 June 2019, GHL and PLL, as purported note trustees, purported to accelerate the Notes and then to appoint Mr Fitzsimmons (the fourth defendant) as receiver over the issuer's loans outstanding, including all the other charged property.
(4) Also on that date, Mr Fitzsimmons, as receiver, purported to exercise a power to remove the issuer's directors and to terminate the issuer's corporate administration agreement with Sanne Group. The fifth defendant (Mr Oyekoya) and the six defendant (Ms Stoica) now hold themselves out as directors of the issuer.
(5) Again on 27 June, GIL, in its purported capacity as noteholder, sought to direct the removal of BNY as note trustee.
(6) On 28 June, the purported receiver purported to sell the "loans outstanding, including all the other charged property", for a cash consideration of £237 million to an unidentified purchaser. The claimant received notice of this in a letter from Mr Oyekoya of 1 July, who at that stage was holding himself out as the receiver. Despite requests, no evidence has been provided as to the identity of the purchaser, the terms of the proposed sale or the receipt or destination of the purchase price.
(7) On 3 July, GHL and PLL purported to act as note trustees in terminating the appointment of Target Servicing Limited as special servicer and cash bond administrator, with GHL being appointed in its place.
"Instrument holders shall, except where the context otherwise requires, be deemed to include holders of beneficial interests in the instruments."
But, he submits (and I see the force of this) the context in schedule 5 clearly requires otherwise since it provides a complete and self-contained mechanism for determining who can vote at meetings or by written resolutions.
"… pursuant to powers granted and vested in the receiver by the deed of charge and assignment dated 18 May 2007."
It does not identify which power or powers entitle the receivers to remove or appoint directors of the issuer. In his witness statement Mr Fitzsimmons relies on clause 11.7 of the deed of charge, but that merely enables the trustee to vest the receiver with such powers the trustee may have under the deed.