Order granting permission to serve a winding-up petition out of the jurisdiction set aside

The High Court set aside an order granting permission to serve a winding-up petition out of the jurisdiction on a Luxembourg sub-fund, due to the Petitioner’s failure to provide full and frank disclosure when presenting its without notice application for permission.

This case concerned an investment vehicle, forming an umbrella fund that comprised a number of sub-funds, each of which had designated to it distinct assets and liabilities. The Petitioner invested £20 million in one sub-fund in return for sub-fund-designated shares in the investment vehicle. The sub-fund's objective was to invest in UK real estate. The sub-fund in question was eventually liquidated and it was claimed that there were no assets left once all the creditors had been paid. The Petitioner petitioned to wind-up the sub-fund as an unregistered company and obtained permission, without notice, to serve the winding-up petition out of the jurisdiction at the sub-fund's registered office in Luxembourg.

As the application for permission had been made without notice, the Petitioner had been under a duty to give full and frank disclosure. The Court found that the Petitioner had failed to do so by not drawing the Court's attention to various material features of its petition including that the petition was not in respect of a company, nor any association of the type previously considered by the Court. The Court found that the sub-fund had no legal personality or registered address. The Petitioner had also failed to explain how, as a shareholder, it had become a creditor entitled to petition to wind-up the sub-fund. The Court concluded that the Petitioner had no standing to present a winding-up petition and that the petition had no realistic prospect of success. The order granting permission to serve outside of the jurisdiction was therefore set aside.

Re An Unregistered Company [2023] EWHC 114 (Ch)

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