A debenture was executed on 24th July 1990. Money earlier advanced by the chargee in anticipation of and in consideration for the debenture, including an advance made on 16th July 1990, had not been made ‘at the same time as’ the creation of the charge for the purposes of section 245(2) of the 1986 Act.
Held: The debenture holder’s appeal failed. Sir Christopher Slade concluded: ‘The words ‘at the time of or subsequently to the creation of . . the charge’ in sec. 212 of the 1908 Act (just as the words ‘at the same time as, or after, the creation of the charge’ in sec. 245 of the 1986 Act) were clearly included by the legislature for the purpose of excluding from the exemption the amount of moneys paid to the company before the creation of the charge, even though they were paid in consideration for the charge; on any other construction these words would have been mere surplusage.’ Section 40 of the 1986 Act is concerned with the position where a charge ‘which as created’ was a floating charge, and the date of creation of a charge is the date on which the charge is executed.
Judges:
Sir Christopher Slade
Citations:
[1993] BCC 609
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – In Re Jackson and Bassford Ltd ChD 1906
Buckley J distinguished between (1) an agreement to give security which was ‘so expressed as to create a present equitable right to a security’ and was thus registrable against te company registers; and (2) an agreement to give security which was so . .
Cited by:
Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.
Insolvency
Updated: 28 January 2022; Ref: scu.444538
