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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of NMC Health Plc Ltd 07-Apr-2021 [2021] JRC 097 (07 April 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_097.html Cite as: [2021] JRC 97, [2021] JRC 097 |
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Companies - equitable winding up.
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone. |
IN THE MATTER OF NMC HEALTH (JERSEY) LIMITED
AND IN THE MATTER OF THE REPRESENTATION OF NMC HEALTH PLC (ACTING BY ITS ADMINISTRATORS)
Advocate M. L. A. Pallot for the Representor
EX tempore judgment
the deputy bailiff:
1. The Representor is NMC Health Plc, a public company incorporated in England and Wales which was listed on the Stock Exchange until it was delisted on 28th April 2020. The Representor is the sole shareholder of the company, NMC Health (Jersey) Limited ("the Company"), a public company registered in Jersey which was incorporated on 16th April 2018.
2. This is an application for the just and equitable winding up of the Company, which is supported not only by the Representor, the sole shareholder, but also all identifiable creditors of the Company. The Company was incorporated in order to act as the issuer of $450 million bonds bearing interest payable to the bond holders at a rate of 1.875%. The bonds were issued pursuant to the terms of a trust dated 30th April 2018 made between the Company as issuer of the bonds and HSBC Corporate Trustee (UK) Limited ("HSBC") as trustee, with the Representor and an Abu Dhabi incorporated subsidiary of the Representor, NMC Healthcare LLC, as guarantors.
3. Under the trust, the Trustee was to represent the interests of the bond holders. When the bonds were issued, $443 million of the funds raised were, it appears, lent to NMC Healthcare LLC pursuant to an intra-group loan agreement which is called the "Proceeds Loan" subject to an interest rate of 2.21%.
4. The Proceeds Loan is the sole asset of the Company. Owing to particular events of default, namely the failure to make interest payments to bond holders in April 2020 and October 2020 and the appointment of UK administrators of the Representor, the Trustee issued a notice of acceleration of bonds on 25th November 2020 to, inter alia, the Company and the original guarantors.
5. On 27th September 2020, NMC Healthcare LLC (now named NMC Healthcare LTD) together with 35 of its subsidiaries were placed into administration in the Abu Dhabi Global Markets.
6. The directors of the Company have disappeared - they are described as having "absconded". The UK administrators of the Representor, who have sworn an affidavit in support of this application in the person of Richard Fleming of Alvarez & Marsal Europe LLP, have made efforts to contact those directors - who remain the subject of ongoing investigation by the administrators.
7. As Mr Fleming explains in his affidavit, an application for a désastre under the 1990 Desastre Law would be inappropriate because the Company is not trading in Jersey and the only Jersey creditor is not a preferential creditor; the joint liquidators are better placed to wind up the Company's affairs than would be the Viscount owing to their detailed knowledge of the Company's affairs arising from their roles as UK administrators in respect of the Representor (the sole shareholder of the Company as I have said); the joint liquidators are to be paid for by the Representor thus saving the cost to the public purse of appointing the Viscount if assets are not recovered. Furthermore, it is not possible to initiate a creditor's winding up as the directors of the Company have disappeared.
8. Although the Company is currently hopelessly insolvent, it is essential if there is to be any recovery of assets, that the Company proves its claims in the liquidation of NMC Healthcare LTD in Abu Dhabi. HSBC on behalf of the Trustee wrote to the Company on 5th March 2001 making an urgent request that the Company takes steps to notify, lodge and/or file a claim in the Abu Dhabi insolvency process in order to ensure any recovery on behalf of the creditors in those proceedings.
9. In view of the insolvency of the Company and the lack of any other practical alternatives, the Court orders the just and equitable winding up of the Company and various ancillary relief sought today.
10. As to the orders that I was asked to make, I declined to grant various specific powers to the joint liquidators provided for within Chapter 4 of Part 21 of the Companies (Jersey) Law 1991 ("the Law") as those provisions of the Law only relate to a creditors' winding up. But the Court may, in its discretion under Article 155(4)(c) which empowers the Court to "make such orders as it sees fit to ensure that the winding up is conducted in an orderly manner" make orders equivalent to those which the Court is expressly empowered to make under Chapter 4 of Part 21. I have made such orders today.
