Trevor Binyon & Anor v Suzerain Investment Holdings Limited & Ors (Re VE Global UK Ltd)

A registrar’s certificate is generally conclusive evidence that the documents required for registration of a company charge were delivered in time. It cannot, however, make conclusive a purported registration of a charge which does not exist. The court must identify the instrument actually delivered and determine whether it created or evidenced the charge. Where an amendment agreement merely extends the terms of an earlier debenture, it does not itself create the debenture charge. If the certificate purports to register a charge created by that amendment agreement, while the debenture was not delivered, the statutory requirements are not satisfied and the charge is void against an administrator under Companies Act 2006, s 859H.

The joint administrators of VE Global UK Ltd applied for directions under para 63 of Sch B1 to the Insolvency Act 1986. The company had issued loan notes and granted a debenture dated 20 December 2021. An amendment agreement dated 18 January 2022 added a further investor, but the debenture was not annexed to the amendment agreement and was not registered.

Companies House issued a certificate recording registration of a charge dated 18 January 2022. The administrators sought a declaration that the debenture was void against them under s 859H of the Companies Act 2006. The respondents did not oppose the application. The central issue was whether the certificate was conclusive despite referring to a charge which the amendment agreement did not itself create.

1. Application determined. The issue was a question of law suitable for determination by direction under para 63 of Sch B1 to the Insolvency Act 1986.
2. Under ss 859A and 859D of the Companies Act 2006, registration of an instrument-created charge requires delivery within the relevant period of a statement of particulars and a certified copy of the instrument. A debenture is registrable.
3. Section 859I(6) ordinarily makes the registrar’s certificate conclusive evidence that the required documents were delivered in time. The authorities show that the court will generally not go behind a certificate where the document delivered in fact creates or evidences a charge, even if the particulars or date are misstated. This principle was illustrated by Re Yolland Husson & Birkett Ltd; Leicester v Yolland Husson & Birkett Ltd, National Provincial & Union Bank of England v Charnley, Re Mechanisations (Eaglescliffe) Ltd, Re Eric Holmes (Property) Ltd (in liquidation), In re C L Nye Ltd and R v Registrar of Companies, ex parte Esal (Commodities) Ltd.
4. The principle does not apply where the certificate purports to register a charge which does not exist. The certificate referred to a charge dated 18 January 2021, in circumstances where the relevant amendment agreement was dated 18 January 2022. The amendment agreement did not itself create a charge; it extended the terms of the earlier debenture. The debenture was not delivered for registration.
5. The case was materially different from In re Bitumina Industries Ltd (in administration), where the document described in the particulars was not entirely different from the deed creating the charge and accurately described the charge apart from its legal form. Here, the certificate purported to register a charge created by an instrument which did not create it.
6. The debenture was therefore void as against the administrators under s 859H of the Companies Act 2006. The court made the requested declaration.

First-instance decision. No prior appellate decision is stated in the judgment.