Bondholders – can your debtor delay liquidation?

Auction_smlDebtors faced with liquidation often ask their creditors for time to realise their assets “to best advantage” rather than by “forced sale”. But per a recent High Court decision, creditors are not obliged to wait.

A property-owning company, defending itself against a liquidation application brought by the bondholder, was found to be “commercially insolvent” but nevertheless asked the Court to exercise its discretion to refuse the order “because the applicant is more than covered by abundant security in respect of its claim. Liquidation will simply result in the forced sale of assets which far exceed any claim that the applicant has against the respondent.”

In rejecting the debtor’s request and granting a liquidation order to the bondholder, the Court commented: “To my mind however this misses the point, which is that it is the applicant which is entitled to payment without further delay. It is not that the applicant should have to wait indefinitely for payment so that the respondent can realise its assets to its own greatest advantage in the normal course. The fact that the applicant holds security for its claim makes no difference since the security itself does not automatically translate into immediate payment.”

Of course corporate debtors might still in appropriate cases be able to seek protection in the form of business rescue – provided that they qualify and are able to formulate a rescue plan that is both genuine and viable. Take advice in doubt.

Ashersons Attorneys

Ashersons Attorneys

Industry news and noteworthy articles from a boutique corporate law firm in Cape Town, South Africa

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