James Borg-Olivier v Andrew Knowles & Ors

This is my extemporary judgment on an application brought by way of what is described as an originating application notice, issued on 2 April 2022 by Mr James Borg-Olivier, under case number CR-2022-MAN-000180. The applicant is one of the two directors of, and a 75 per cent shareholder in, the fourth respondent company, Impactt Properties Limited, which is purportedly in administration. He brings this application with the knowledge and authority of the other director and remaining 25 per cent shareholder, Mr Neil Moir.

The first and second respondents, Mr Andrew Knowles and Mr Michael Vincent Lennon, are the appointed administrators of the fourth respondent company, Impactt. They were purportedly appointed out of court on 2 March 2022 by the third respondent, Goldcrest Finance Limited, under the terms of a fixed and floating charge over the assets of Impactt, dated 5 August 2020, pursuant to paragraph 14 of schedule B1 to the Insolvency Act 1986. The notice of appointment was filed under case number CR-2022-MAN-000157. The application is said to relate to paragraph 16 of schedule B1 to the Insolvency Act 1986 (as amended). That paragraph provides that an administrator may not be appointed under paragraph 14 whilst a floating charge on which the appointment relies is not enforceable.

The evidence in support of the application is contained within the witness statement of the applicant, dated 18 March 2022. Although the third respondent states that it has not been properly or validly served with this application, it has been notified of it by the first and second respondents; and it has filed evidence in answer in the form of a witness statement from Mr Steven Mark Gildea, the commercial director of the third respondent, dated 19 April 2022. There is also before the court a witness statement from Mr Andrew Knowles, the first respondent, made with the authority of his joint administrator, the second respondent, dated 13 April 2022.

The applicant is represented by Mr Nicholas Jackson (of counsel). The first and second respondents, the joint administrators, are represented by Mr Ian Tucker (also of counsel); and the third respondent is represented by Mr Tom Longstaff (also of counsel). The fourth respondent, Impactt, does not appear and is not represented before me. All three counsel have filed skeleton arguments. I also have a 208 page hearing bundle.

As clarified by Mr Jackson at this hearing, the relief now sought by the applicant is a declaration that th