Transaction Avoidance in Insolvencies

by Parry, Rebecca; Anderson, Hamish

• ISBN13: 9780198298908
• ISBN10: 0198298900
• Format: Hardcover
• Copyright: 2002-02-07
• Publisher: Oxford University Press

Summary

Transactions entered into when a company or individual is insolvent or bankrupt can be declared void by the courts. This book analyses in detail the circumstances in which a transaction will or will not be declared void, and looks at the practical issues surrounding such declarations, including evidence gathering, procedure and the relationship with director disqualification and other insolvency proceedings.

Author Biography

Rebecca Parry is a Lecturer in Law at the University of Leicester.
The Consultant Editor, Hamish Anderson, is a Partner with the City firm of Norton Rose solicitors, and a leading practitioner specializing in insolvency law.

Table of Contents

Preface	v
List of Figures	xxix
Table of Cases	xxxi
Table of Legislation	lix
I INTRODUCTION
Introduction
Introduction	1	(6)
Organization of This Text	7
Terminology	10
The Rationale of the Transaction Avoidance Provisions of the Insolvency Act 1986
Introduction	1	(4)
Transactions Vulnerable outside Insolvency	5	(13)
protection of rights to assets	7	(7)
prevention of exploitation	14	(4)
Transactions Vulnerable Only in Insolvency	18	(37)
Balancing the needs of creditors with the need for contractual certainty	19	(2)
The aims of insolvency law	21	(6)
Transaction avoidance in liquidation: protecting the scheme of asset distribution	27	(28)
Conclusion	55
II AVOIDANCE LAWS IN INSOLVENCY
Post-Petition Dispositions (Insolvency Act 1986, Sections 127 and 284)
Introduction	1	(2)
History	3	(1)
Policy	4	(3)
Timing	7	(2)
Invalidation Is Strict	9	(1)
Payment to Petitioning Creditor	10	(1)
`Disposition'	11	(36)
The use, consumption, or exhaustion of assets	14	(4)
Disposition need not have been made willingly	18	(1)
Intermediate steps in carrying out the disposition	19	(1)
Dispositions involving `agents'	20	(11)
Disposition of a `company's property' (section 127 only)	31	(9)
Transfer of shares/alteration of the status of members	40	(2)
Market contracts	42	(1)
Dispositions by bankrupts	43	(4)
Validation	47	(30)
Solvency and insolvency	49	(2)
Re Gray's Inn Construction Co Ltd	51	(18)
Disposition in good faith and in ignorance of the petition	69	(3)
Dispositions which are entirely post-petition	72	(4)
Payments in respect of pre-liquidation debts	76	(1)
Bank Accounts	77	(24)
Payments into the account	78	(8)
Payments out of the account	86	(13)
Company reorganizations	99	(2)
Effect on Third Parties	101	(3)
State immunity	103	(1)
Parties Who May Apply for Validation	104	(1)
Other Remedies	105	(4)
Misfeasance	106	(1)
Personal remedies	107	(1)
Other transaction avoidance provisions	108	(1)
Remedies	109	(3)
Prejudice to recipients of the property	110	(2)
Destination of Proceeds	112	(2)
Avoidance of Attachments	114
Transactions at an Undervalue (Sections 238 and 339)
Introduction	1	(1)
History	2	(2)
Types of Transaction Which May Be Voidable Under Section 238 or 339	4	(59)
Transaction not entered into by the debtor	5	(1)
`Transaction'	6	(3)
Gifts or transactions for which the debtor received no consideration	9	(9)
Transactions entered into by the debtor in consideration of marriage	18	(2)
Transactions for which the debtor received consideration which was significantly less, in money or money's worth, than the consideration it gave	20	(5)
Guarantees and collateral security	25	(27)
Charges	52	(11)
Consideration	63	(16)
Past consideration	66	(3)
Payments to third parties	69	(3)
Consideration provided by third parties	72	(4)
Whether a detriment can constitute consideration	76	(3)
Significant Undervalue	79	(24)
Valuation	81	(22)
Relevant Time	103	(12)
Time period	104	(2)
Insolvency	106	(9)
Connected Parties and Associates	115	(9)
Associate of a debtor	116	(2)
Person connected with a company	118	(6)
Invalid Administrative Receivership	124	(3)
Transactions in Good Faith (Corporate Insolvency Only)	127	(8)
Good faith	129	(1)
Purpose of carrying on business	130	(1)
Reasonable grounds for believing that the transaction would benefit the company	131	(2)
Benefit to a sister/parent company	133	(2)
Ignorance on Part of Person with Whom the Transaction is Entered Into	135	(1)
Interests in the Family Home	136	(1)
Group Reorganizations	137	(3)
Remedies	140	(31)
Restoration of property	144	(5)
Restoration of the value of the property	149	(3)
Removal of security	152	(1)
Payment of sums	153	(3)
Revival of guarantee	156	(1)
Provision of security	157	(2)
Persons subject to the order	159	(2)
Orders against third parties	161	(7)
Discretion	168	(3)
Exemption for Market Contracts	171	(1)
Destination of Proceeds	172	(2)
Other Remedies	174	(6)
Misfeasance	175	(1)
Preference	176	(1)
Transactions defrauding creditors	177	(1)
Sham transactions	178	(1)
Duress	179	(1)
Cross-Border Transactions	180
Preferences (Insolvency Act 1986, Sections 239 and 340)
Introduction	1	(2)
History	3	(9)
Bankruptcy Act 1914, section 44 and Companies Act 1948, section 320	4	(2)
The Cork Committee and the 1985--6 reforms of insolvency law	6	(6)
Overview	12	(3)
Examples of preferential transactions	13	(1)
Little case law	14	(1)
`Relevant Time'	15	(8)
`Onset of insolvency'	16	(1)
Company administrations	17	(1)
The requirement of insolvency	18	(4)
Debts agreed to be paid at a later date	22	(1)
Who May Apply for an Order?	23	(1)
Creditor, Surety, or Guarantor	24	(29)
Creditors	25	(20)
Secured creditors	45	(3)
Surety or guarantor	48	(2)
Creditor or beneficiary?	50	(3)
Measuring the Improvement in Position	53	(23)
Authority	56	(9)
Company administrations	65	(1)
Principle	66	(10)
New Value Transactions	76	(20)
Short-term transactions	80	(2)
Running Accounts	82	(6)
Transactions which take place in stages	88	(1)
Bank accounts	89	(5)
Quistclose trusts	94	(2)
Influence by a Desire	96	(27)
Background	97	(3)
Proving `influence by a desire'	100	(3)
Connected parties	103	(2)
Subsequent events	105	(1)
Lack of awareness of insolvency	106	(4)
How companies form desire	110	(3)
Other motivating factors	113	(3)
Creditor's good faith	116	(3)
Onus of proof	119	(3)
Action taken by third parties	122	(1)
Administrative Receivership	123	(5)
Preference of charge holder	124	(3)
Section 245	127	(1)
Remedies	128	(21)
Restoration of property	129	(1)
Restoration of the value of the property	130	(1)
Removal of security	131	(1)
Payment of sums	132	(1)
Revival of guarantee	133	(1)
Provision of security	134	(1)
Persons subject to the order	135	(2)
Preference of guarantor	137	(3)
Orders against third parties	140	(8)
Discretion	148	(1)
Exemption for Market Contracts	149	(1)
Other Remedies	150	(8)
Transaction at an undervalue	151	(3)
Misfeasance	154	(3)
No double recovery	157	(1)
Destination of Proceeds	158
Extortionate Credit Transactions (Insolvency Act 1986, Sections 244 and 343)
Introduction	1	(6)
Rarity of Extortionate credit transactions	2	(4)
General equitable jurisdiction	6	(1)
History	7	(6)
Comparison with the Consumer Credit Act 1974 provisions	8	(5)
Substantive Requirements	13	(22)
Transaction for, or involving, the provision of credit	14	(2)
Time limit	16	(3)
Proof	19	(3)
Grossly exorbitant terms	22	(12)
Otherwise contravening the ordinary principles of fair dealing	34	(1)
Remedies	35	(2)
Destination of Proceeds	37	(1)
Alternative Remedies
Transactions at an undervalue	38	(3)
Consumer Credit Act 1974 cannot be used	41	(1)
Court's equitable jurisdiction	42	(1)
Duress	43	(1)
Non est factum	44
Disclaimer
Introduction	1	(1)
History	2	(2)
Applicability	4	(2)
Onerous Property	6	(5)
Property	8	(3)
Examples of Items Which May Constitute Onerous Property Freehold interests in land	11	(14)
Leases	14	(2)
Rights and interests such as licences and permits	16	(2)
Shares in companies	18	(1)
Animals	19	(3)
Dangerous substances	22	(1)
Unprofitable contracts	23	(2)
Permission (Bankruptcy)	25	(4)
Procedure	27	(2)
Notice	29	(16)
Form of notice	30	(2)
Timing	32	(1)
Persons who should be notified	33	(7)
When notification is to take place	40	(2)
Notice of election/loss of the right to disclaim	42	(3)
The Effect of Disclaimer	45	(35)
Freehold interests in land	48	(7)
Leasehold interests in land	55	(6)
Personal property	61	(15)
Unprofitable executory contracts	76	(1)
Unprofitable sale of land	77	(2)
Unprofitable purchase of land	79	(1)
Effect of Disclaimer on Persons with an Interest in the Property	80	(2)
Vesting Orders	82	(20)
Persons who may apply	83	(1)
No conveyance etc required	84	(1)
Procedure	85	(4)
Priorities in relation to leasehold property	89	(8)
Conditions	97	(1)
Conditions in respect of leasehold property	98	(4)
Challenging a Disclaimer	102	(3)
Disclaimer of Overseas Property	105	(2)
Disclaimer by the Crown	107
Restoration to the register	109
Unenforceability of Liens of Books etc (Sections 246 and 349)
Introduction	1	(2)
History	3	(1)
Application	4	(1)
Documents Which Give Title to Property	5	(4)
Effect of Possession Being Surrendered	9	(1)
Interaction with Other Provisions	10
Avoidance of General Assignments of Book Debts---Bankruptcy (Section 344)
Introduction	1	(2)
History	3	(1)
Business	4	(3)
Assignments	7	(2)
Book Debts	9	(5)
Specified Book Debts	14	(1)
Any Class of Debts	15	(1)
Other Lines of Attack	16
Transactions Defrauding Creditors (Insolvency Act 1986, Section 423)
Introduction	1	(2)
Origins	3	(1)
Court	4	(1)
Purpose	5	(15)
Proving what the purpose was	7	(5)
Transactions with more than one purpose	12	(2)
Dishonest motive not necessary	14	(4)
Determining what a company's `purpose' is	18	(2)
Undervalue	20	(8)
`Common-sense' approach to valuation	22	(6)
No Time Limit	28	(1)
Who May Apply for the Avoidance of the Transaction?	29	(12)
Creditors	31	(2)
Victims	33	(6)
Victim's application for permission	39	(2)
Transactions Between Related Companies: Lifting the Corporate Veil	41	(4)
Professional Privilege	45	(6)
Not all transactions defrauding creditors will be considered to be `iniquitous'	46	(2)
Public confidence not undermined	48	(1)
When the advice was given	49	(2)
Remedies	51	(11)
Possible forms of relief	55	(2)
Interim relief	57	(1)
Protection of third parties	58	(4)
Other Remedies
Transactions at an undervalue	62	(4)
Misfeasance	66	(2)
Preferences	68	(2)
`Sham' transactions	70	(8)
Lifting the corporate veil	78	(1)
Relying on the Illegality of the Transaction	79	(1)
Destination of Proceeds	80	(2)
Balancing the Interests of the Victims of the Transaction	82	(2)
Protective Trusts	84	(3)
Cross-Border Transactions	87	(4)
Brussels and Lugano Conventions	89	(2)
Offshore Asset Protection Trusts	91
Transactions which Conflict with the Pari Passu Principle
Introduction	1	(2)
Obtaining Priority	3	(12)
Having a right in rem	4	(3)
Being owed expenses of the winding up or bankruptcy	7	(1)
Being a preferential creditor	8	(1)
Having a right of set-off	9	(1)
Being in a position to demand payment of pre-liquidation, or pre-bankruptcy, debts	10	(1)
Contractual debt subordination	11	(2)
Possible special cases	13	(2)
No Contracting Out of the Scheme of Distribution in Other Cases	15	(4)
British Eagle v Air France: Intention Not Relevant	19	(9)
System not confined to insolvency	22	(1)
Contracts involving the transfer of property	23	(4)
Other examples of impermissible agreements	27	(1)
Post-1986 Application of the Rule	28
III ISSUES PECULIAR TO BANKRUPTCY
The Family Home
Introduction	1	(4)
Post-Petition Disposition	5	(1)
Bankruptcy Prior to Transfer	6	(2)
Transaction at an Undervalue	8	(44)
Consideration	10	(8)
Resulting and constructive trusts: terminology	18	(4)
Extent of interest acquired/held by spouse	22	(1)
House formerly held solely in name of bankrupt, now in name of spouse	23	(13)
House held in joint names	36	(10)
House formerly held in joint names, now in name of spouse alone	46	(3)
House formerly held by nominee company	49	(1)
Lease	50	(2)
Statutory Protection	52
Dwelling house	53	(1)
Partial share	54	(16)
Full entitlement	70	(3)
Children in residence	73
Concurrent Bankruptcy and Divorce
Introduction	1	(4)
Ancillary Relief	5	(26)
MCA 1973, section 23: financial provision order	7	(12)
MCA 1973, section 24: property adjustment order	19	(12)
Foreign Divorce Proceedings	31
Pensions (Bankruptcy Only)
Introduction	1	(1)
Types of Pension	2	(5)
Occupational	3	(1)
Personal	4	(1)
State retirement pensions and SERPS	5	(1)
Statutory pension schemes	6	(1)
Transaction at an Undervalue/Transaction Defrauding Creditors	7	(3)
Position for Those Adjudged Bankrupt Prior to 29 May 2000	10	(9)
Re Landau and occupational pensions	14	(2)
Forfeiture	16	(3)
Welfare Reform and Pensions Act 1999	19	(22)
Approved pension scheme	20	(3)
Unapproved schemes	23	(2)
No forfeiture	25	(1)
Excessive contributions	26	(11)
Income contributions order	37	(4)
Explanatory Diagram	41
Criminal Offences Arising from Fraud and Deception (Personal Insolvency)
Introduction	1	(2)
General Issues	3	(7)
Defence	5	(1)
Institution of proceedings	6	(1)
Penalties	7	(1)
`Property'	8	(1)
Applicable time periods	9	(1)
Overlap with the Theft Act 1968	10	(1)
Jurisdiction	11	(1)
Non-Disclosure	12	(3)
Penalty for non-disclosure	14	(1)
Concealment of Property	15	(9)
Failure to deliver property	16	(2)
Removal of property	18	(2)
Failure to account for losses of property	20	(3)
Settlement of a non-provable debt	23	(1)
Concealment or Falsification of Books and Papers	24	(10)
Non-delivery of books and papers	25	(2)
Destruction or concealment	27	(4)
Disposal, alteration, etc of books and other documents	31	(3)
False Statements	34	(7)
Material omission	35	(2)
Failure to inform etc	37	(4)
Fraudulent Disposal of Property	41	(6)
Penalty for fraudulent disposal of property	46	(1)
Absconding	47	(4)
Penalty for absconding	50	(1)
Fraudulent Dealing with Property Obtained on Credit	51	(7)
By the bankrupt	52	(3)
By the recipient of the property	55	(3)
Wrongfully Obtaining Credit or Engaging in Business	58	(7)
Obtaining credit	59	(4)
Carrying on business	63	(2)
Failure to Keep Proper Accounts of Business	65	(6)
Failure to keep proper accounts	66	(2)
Failure to preserve accounting records	68	(1)
Defence	69	(1)
Penalty for failing to keep or preserve proper accounts	70	(1)
Gambling	71
Behaviour pre-petition	72	(1)
Behaviour between petition and order	73	(1)
General comments applicable to both offences	74	(1)
Penalty for gambling etc	75
IV ISSUES PECULIAR TO CORPORATE INSOLVENCY
Floating Charge Avoidance: Non-Registration---Companies Act 1985, Section 395 (England and Wales)
Introduction	1	(1)
Registration Requirement	2	(8)
Charges requiring registration	5	(3)
Time for registration	8	(1)
Property acquired subject to a charge	9	(1)
Extent of Invalidity	10	(22)
Registration does not confer total immunity	13	(1)
Charge is valid within 21-day period	14	(1)
No effect on the debt itself	15	(2)
Charge is only invalid in respect of certain property	17	(1)
Invalidity against an administrator	18	(2)
Invalidity against secured creditors	20	(9)
Invalidity against unsecured creditors	29	(3)
Charges with an Overseas Element	32	(7)
Registration requirements	34	(4)
Foreign insolvency proceedings	38	(1)
Late Registration	39	(7)
Interests of other creditors	43	(2)
Effect of late registration	45	(1)
Application for Invalidation	46	(3)
Companies Act 1989	49
Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)
Overview	1	(3)
History	4	(2)
Fixed Charges	6	(1)
Charges Which Have Crystallized	7	(1)
New Value	8	(33)
Categories of `value'	10	(16)
Valuation	26	(1)
Value must be in consideration for the charge	27	(8)
Advance not made directly to the debtor	35	(3)
Recharacterized transactions	38	(2)
Consideration checklist	40	(1)
The Creation of the Charge: Contemporaneity	41	(13)
The approach pre-1986	42	(1)
Re Shoe Lace Ltd: Hoffmann J	43	(1)
Re Shoe Lace Ltd: Court of Appeal	44	(1)
Delay must be de minimis	45	(2)
Agreement to create a charge	47	(5)
Hardening the charge: Re Yeovil Glove Co Ltd	52	(2)
Relevant Time	54	(5)
Onset of insolvency	55	(1)
Connected parties	56	(2)
Non-connected parties	58	(1)
Effect of Invalidity	59	(7)
Effect on administrative receivership	60	(3)
Implications where an administration order is proposed	63	(3)
Other Remedies
Preferences	66	(1)
Misfeasance	67	(1)
Unregistered charges	68	(1)
Transaction at an undervalue	69
Avoidance Powers under the Companies Act 1985
Introduction	1	(4)
Advantages of the 1985 Act Provisions: Overview	5	(6)
Example	10	(1)
Substantial Property Transactions	11	(13)
Requirements under section 320	12	(6)
Holding companies	18	(1)
Ratification	19	(1)
Relief	20	(4)
Ultra Vires Transactions	24	(10)
Person with whom the contract was entered into	25	(1)
Powers exceeded	26	(2)
Remedies	28	(3)
Overlap with other provisions enabling avoidance	31	(2)
Link with the Companies Act 1985, section 35A	33	(1)
Loans, Guarantees, Provisions of Security, and Credit Transactions	34	(22)
Person with whom transaction entered into	35	(1)
Prohibited transactions	36	(8)
Anti-avoidance	44	(1)
Remedies	45	(7)
General defences	52	(3)
Overlap with Insolvency Act 1986 transaction avoidance	55	(1)
Payments for Loss of Office	56	(4)
General provision	57	(1)
Transfer of undertaking/property	58	(1)
Takeover	59	(1)
Declaration of Director's Interest in a Contract	60	(2)
Share Capital Requirements	62	(17)
Issue of shares at a discount	63	(2)
Distributions made out of capital not profits	65	(7)
Purchases of own shares	72	(3)
Giving of financial assistance for purchase of own shares	75	(4)
Destination of Proceeds	79	(1)
Funding	80
Misfeasance (Corporate Insolvency)
Introduction	1	(3)
Availability	4	(22)
Misapplication, retention, etc of money or other property of the company	6	(5)
Misfeasance, breach of any fiduciary or other duty	11	(6)
Ratification	17	(1)
Complex cases	18	(1)
Not all claims against directors included	19	(1)
Requirement of loss	20	(1)
Examples	21	(5)
Overlap Between the Transaction Avoidance Provisions and Misfeasance
Preferences	26	(1)
Not all preferences constitute misfeasances	27	(5)
Transactions at an undervalue/transactions defrauding creditors	32	(4)
Persons Against Whom a Remedy May Be Sought	36	(1)
Remedies	37	(7)
No set-off	38	(1)
Global recoveries	39	(3)
Companies Act 1985, section 727 defence	42	(1)
Discretion	43	(1)
Who May Apply	44	(2)
Funding	46
Criminal Offences (Companies)
Introduction	1	(4)
Officers	5	(2)
Directors	6	(1)
Section 206, Fraud etc in Anticipation of Winding Up	7	(5)
Being privy to activities of others	8	(1)
Defences	9	(2)
Penalty	11	(1)
Section 207, Transactions in Fraud of Creditors	12	(5)
Section 208, Misconduct in the Course of Winding Up	17	(10)
Intent to defraud	20	(3)
Fictitious losses or expenses	23	(1)
Penalty	24	(3)
Section 209, Flasification of Company's Books	27	(4)
Section 210, Material Omissions from Statement Relating to Company's Affairs	31	(3)
Section 211, False Representations to Creditors	34	(2)
Duty to Report Suspected Offences	36
Winding up by the court	37	(2)
Voluntary winding up	39
V CROSS-BORDER TRANSACTION AVOIDANCE
Scotland
Introduction	1	(1)
Sources of Avoidance Rules	2	(4)
Statute	3	(2)
Common law	5	(1)
Gratuitous Alienations	6	(20)
Statute	7	(14)
Common law	21	(5)
Preferences	26	(13)
Statute	27	(8)
Common law	35	(4)
Payment of Capital Sum on Divorce	39	(2)
Transactions Defrauding Creditors	41	(1)
Disclaimer	42	(1)
Extortionate Credit Transactions	43	(1)
Avoidance of Attachments	44	(1)
Destination of Proceeds	45
Cross-Border Transaction Avoidance
Introduction	1	(5)
Overview of Approaches to International Insolvencies	6	(13)
Jurisdictions in which insolvency proceedings may be opened	7	(1)
Scope of insolvency proceedings	8	(5)
Factors which may determine the venue for transaction avoidance	13	(1)
Foreign transaction avoidance provisions	14	(5)
The Jurisdictional Reach of the Avoidance Provisions of the Insolvency Act 1986	19	(53)
Procedural applicability	20	(2)
The jurisdiction of English courts to wind up companies incorporated abroad	22	(8)
The jurisdiction of English courts to order administration of an overseas company	30	(1)
The effect of jurisdiction being accepted	31	(5)
Acceptance of jurisdiction to hear avoidance cases	36	(2)
The applicability of the Insolvency Act 1986 transaction avoidance provisions to overseas defendants	38	(9)
Acceptance by the courts in England and Wales of insolvency proceedings taking place in another jurisdiction	47	(7)
Forum shopping	54	(7)
Co-operation by the English courts in foreign liquidation: Insolvency Act 1986, section 426	61	(10)
Section 423	71	(1)
The Future of International Insolvency Laws	72	(41)
European Union Regulation on Insolvency Proceedings	73	(18)
UNCITRAL Model Law on Cross-Border Insolvency	91	(11)
Council of Europe: Istanbul Convention	102	(8)
United States: Co-operation Procedure	110	(2)
Australian Judicial Assistance Procedure	112	(1)
Safe Havens	113	(1)
Conclusion	114
VI PRACTICAL ISSUES
Evidence Gathering
Introduction	1	(3)
Corporate Insolvency	4	(42)
Getting in company property, section 234	5	(2)
Duty to co-operate, section 235	7	(4)
Examination, sections 133 and 236	11	(34)
Criminal penalties for concealing evidence	45	(1)
Bankruptcy	46
Arrest and/or seizure of property, sections 364 and 365	47	(2)
Investigation, section 366	49	(5)
Redirection of mail, section 371	54	(1)
Criminal penalties for concealing evidence	55
Transaction Avoidance and Company Director Disqualification Proceedings
Introduction	1	(2)
The Disqualification System	3	(3)
The Relevance of Transaction Avoidance to Director Disqualification	6	(14)
Assessing the transaction	10	(5)
Extent of the defendant's responsibility	15	(1)
No other misconduct	16	(1)
`Double jeopardy' is no defence	17	(1)
Transaction avoidance claim not pursued	18	(1)
No stay pendente lite	19	(1)
Use in Avoidance Proceedings of Findings in the Disqualification Proceedings	20
Res judicata	22	(1)
Abuse of process	23	(7)
Use of Carecraft disposals in other proceedings	30	(2)
Undertakings	32
Limitation Periods
Introduction	1	(1)
Limitation Act 1980	2	(1)
Application of the Limitation Act 1980 to Transaction Avoidance Proceedings	3	(5)
Avoidance provisions other than sections 238 and 239	7	(1)
Cases Involving Fraud	8	(1)
Striking Out	9
Funding
Introduction	1	(3)
The Assets of the Debtor	4	(12)
Impact on creditors	5	(2)
Expenses of winding up	7	(6)
Use of debtor's assets to fund litigation in bankruptcy	13	(1)
Application to other remedies	14	(2)
Funding Agreements with Creditors or Outside Parties	16	(28)
Funding by creditors	17	(2)
Action incapable of assignment	19	(4)
Maintenance and champerty	23	(2)
Control of the action must be retained	25	(7)
Assignment of the fruits of litigation	32	(5)
First charge on recoveries	37	(2)
Adverse costs	39	(5)
Misfeasance: a Solution to Funding Difficulties?	44	(3)
Alternative Methods of Funding	47	(5)
Insurance	49	(1)
Conditional fee agreements	50	(2)
Additional Barriers	52	(3)
Security for costs	53	(1)
Objection by a person aggrieved	54	(1)
Administration Orders	55
Other Laws Enabling Transaction Avoidance
Introduction	1	(5)
Laws Enabling the Avoidance of Unfair Bargains	6	(37)
Duress	7	(10)
Undue influence	17	(13)
Illegality	30	(3)
Non est factum	33	(8)
Harsh and unconscionable bargains	41	(1)
Other cases	42	(1)
Resulting and Constructive Trusts	43
Resulting trust	44	(5)
Constructive trust	49
Destination of Proceeds (Corporate Insolvency)
Introduction	1	(5)
Impact of Law on Destination of Proceeds	6	(5)
Effect on the aims of transaction avoidance	7	(2)
Effect on funding	9	(2)
Actions Whose Realizations Definitely Fall Within the Scope of the Charge	11	(6)
Right of action occurring prior to winding up	12	(4)
Provision deeming transactions to be void: post-petition dispositions	16	(1)
Preferences	17	(42)
The scope of the charge	18	(8)
Entitlements to sue	26	(2)
Can fault be found with the law at present in relation to preferences?	28	(31)
Remedies Other than Preferences	59	(10)
Transactions at an undervalue	60	(4)
Transactions defrauding creditors	64	(5)
Global Recoveries	69	(3)
Conclusion	72	(515)
Bibliography	587	(8)
Index	595