The answer, like the article, has to be cautious. Toshoku did not concern a rent claim as such. Earlier decisions on such claims were considered solely for the purpose of rejecting certain submissions made by the liquidator. However, as a matter of general insolvency law, it is now clear (overruling the rating case of In Re Kentish Homes Ltd [1993] BCLC 1375) that a post-liquidation creditor does not have to cross a discretionary threshold before attempting to show that his claim ranks as one of the “expenses of the liquidation” categorised in r 4.218(1) of the 1986 Insolvency Rules.
* This judgment (sub-nom Kahn v Commissioners of Inland Revenue) can be viewed at www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
Q A company tenant goes into liquidation. What are the landlord’s chances of recovering the full rent falling due thereafter?
A Somewhat improved since the decision of the House of Lords in Re Toshoku Finance plc (in liquidation) v Commissioners of Inland Revenue [2002] UKHL 6*, which has been helpfully noted and discussed by Peter Levaggi, of Charles Russel, in Comply with the rules Estates Gazette 18 May 2002, p221.
The answer, like the article, has to be cautious. Toshoku did not concern a rent claim as such. Earlier decisions on such claims were considered solely for the purpose of rejecting certain submissions made by the liquidator. However, as a matter of general insolvency law, it is now clear (overruling the rating case of In Re Kentish Homes Ltd [1993] BCLC 1375) that a post-liquidation creditor does not have to cross a discretionary threshold before attempting to show that his claim ranks as one of the “expenses of the liquidation” categorised in r 4.218(1) of the 1986 Insolvency Rules.
* This judgment (sub-nom Kahn v Commissioners of Inland Revenue) can be viewed at www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
