The
following are some issues to be considered by Receivers in the current
environment where more and more borrowers are looking to pursue a Receiver for
breach of their obligations.
This
article looks at the various ways in which a Receiver can be appointed, the
duties of Receivers and how Receivers can protect themselves from litigation.
Mode of Appointment
The
traditional method of appointing a Receiver is under a Deed of
Mortgage/Debenture where the appointment is usually governed by the loan
documents.
Under the
NAMA Act a Receiver can be appointed by the Court as a statutory Receiver and
when appointed he becomes an officer of the Court. Section 147 and 151 of the NAMA Act sets out
the duties of the Receiver in these circumstances.
General Duties
The general
duty of a Receiver is to assume and take control of the assets of the debtor.
Section 316
A of the 1963 Companies Act provides that the Receiver must obtain “the best
price reasonably attainable at the time of the sale”.
In the
current environment more and more Receivers are opting for the auction route
(particularly through the distressed property sale market) .This presumably is
to be able to demonstrate to a Court at a later date that he/she has placed the
property by way of public auction and the price obtainable was the best in the
circumstances. While it is fair to say
that the sale by way of auction does not necessarily insulate a Receiver fully
from a threat of legal action it certainly goes a long way to demonstrating
that he /she has made all reasonable efforts to obtain the best price
reasonably obtainable.
The Receiver has to make sure that in these
circumstances that any sale is at arms length and that any interested bidder
has no connection with the borrower or the Receiver. Indeed if it is a case that an officer of the
Company wishes to purchase any of the assets of the Company then certain
statutory requirements as set out in section 316(a)(3)(a) of the 1963 Act
apply. These also apply in circumstances
where the Receiver may be seeking to sell the Company itself or trade as a
going concern and if he does so he must ensure that he sets out a tendering
process which is fair and transparent to all prospective bidders.
In certain
cases the Receiver may seek the directions of the Court. This is provided for under Section 316 of the
1963 Act but this is rarely used as it is regarded as being reserved only for
particularly complex matters given the additional costs.
Selling Assets
One of the
dilemmas facing a Receiver is whether to hold onto assets and rent them or to
sell them in a declining market. There
are a number of cases including the “Re Edenfell Holdings Limited” and “Grace v
ACC Bank plc” which were decided in 1999 and 2006 respectively which deal with
this issue. Both of these cases
established the principle that a Receiver should not postpone a sale of assets
simply because he believes the market is at a low point and that it would be
better to wait until there is an improvement in market conditions. The Judgements made clear that a Receiver is
not a property speculator.
To whom does the Receiver owe a duty ?
The primary
duty of care as established in the case of Bula Limited v Crowley (3) (2003)which held that the
Receiver owes the primary duty of care to the Debenture holder. This is a fiduciary responsibility which
means the Receiver must act in good faith and must prioritise the interests of
the Debenture holder ahead of the interests of the Receiver.
Where the
borrower has also signed personal guarantees the Receiver also has a subsidiary
duty to the borrower and needs to careful to be sure that he has obtained the
best price which is reasonably obtainable in the circumstances to avoid a legal
challenge.
How can the Receiver Protect Himself?
- Appoint a Property Expert with experience
in the particular type property being sold/location being sold with a view
to obtaining guidance in relation to optimising value and method of sale.
- Procure the services of an insolvency
practitioner with a view to advising on obligations, duties and the best
method of guarding same.
- Secure any assets i.e. make sure they are
insured and are reasonably secure.
- Ensure compliance with statutory
obligations under the Companies Act 1963 and where it is a NAMA
appointment under the NAMA Act.
The
increasing number of Receiver appointments puts Receivers in the spotlight and
it is important that they are careful to ensure that they protect themselves
and isolate themselves from possible litigation.
For further information contact Brendan Dillon
on brendandillon@dillon.ie or 01
296 0666.
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