In its judgment dated 28 July 2021, the BVI Commercial Court, determined both that as matter of jurisdiction, and in the exercise of his discretion he should permit creditors who successfully opposed the making of a winding-up order to recover their costs from the applicant creditor.

Justice Adrian Jack [Ag] dismissed the application (the “Application”) made by TLG Atma Ltd (“TLG”) to appoint liquidators over Atlas Mara Limited (the “Company”).

The reasons for the dismissal of the Application were twofold.

Firstly, the Court determined that the evidence submitted by the Company met the required threshold in the oft cited Eastern Caribbean Court of Appeal decision Sparkasse Bregenz Bank AG v In the Mater of Associated Capital Corporation, Civil Appeal No.10 of 2002 (determined on 18th June 2003).  Secondly, the Court was not of the opinion that it would be just and equitable for liquidators to be appointed in light of the opposition from the majority of creditors including Prudential Insurance Company of America (“Prudential”) and Guggenheim Partners Investment Management LLC (“Guggenheim”) ( together the “Opposing Creditors”).

The Opposing Creditors

Prudential and Guggenheim (both represented by Conyers) in advance of the liquidation each filed their respective notices of intention to appear, in addition to a short note setting out their reasons for opposition.  As opposing creditors, and therefore interested parties entitled to be heard, they were not parties to the Application.

The Opposing Creditors opposed the Application on the basis that a winding up order would frustrate the current restructuring plans of the Company for ongoing financial viability to an orderly divestment of the Company’s assets (the “Restructuring Plan”). The Restructuring Plan was supported by the majority of the Company’s principal creditors all of whom had agreed to stay enforcement of their debts while the Restructuring Plan was put into effect (the “Standstill Agreement”). The Applicant did not support the Restructuring Plan nor did it agree to enter into the Standstill Agreement.

The Court determined that the majority of creditors including the Opposing Creditors had good reasons for opposing the Application and to support the Restructuring Plan which was projected to result in a better return to the creditors than a court ordered liquidation process.

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