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

The court determined that a debenture dated 20 December 2021 granted by VE Global UK Limited was void as against the administrators under section 859H of the Companies Act 2006 because the requisite documents were not delivered for registration within the relevant period. The registrar's certificate, which purported to certify registration of a charge dated 18 January 2022, referred only to an amendment agreement that did not itself create the charge. The judge held that, although the registrar's certificate is in general conclusive evidence of timely delivery under section 859I, the certificate in this case purported to register a charge that did not in fact exist and therefore could not validate the unregistered debenture.

Background and parties:

• The applicants were the joint administrators of VE Global UK Limited. The respondents included noteholders and parties to a guaranteed debenture and an amendment agreement.
• The company issued loan notes in December 2021 and granted a debenture dated 20 December 2021 as security for some investments; that debenture was not registered.
• An amendment agreement dated 18 January 2022 added a further investor as a contracting party but the debenture was not annexed to that amendment. A copy of the amendment agreement was delivered to Companies House, and the registrar subsequently issued a certificate purporting to record registration of a charge dated 18 January 2022.

Nature of the application: The administrators applied under paragraph 63 of Schedule B1 to the Insolvency Act 1986 for a direction on the status of the debenture; the application raised a pure question of law and was appropriate for determination under that provision.

Issues framed:

• Whether the debenture (dated 20 December 2021) had been properly registered within the period required by the Companies Act 2006.
• What weight to give to the registrar's certificate issued after delivery of the amendment agreement, in light of the statutory provision (section 859I) that the certificate is conclusive evidence of timely delivery.
• Whether the certificate could be treated as validating registration of a charge where the document certified was an amendment agreement that did not itself create the charge.

Reasoning and findings:

• The court reviewed the statutory scheme in the Companies Act 2006, notably sections 859A (requirement to deliver a statement of particulars and certified copy where instrument exists), 859D (required particulars), 859F (extension of time), 859H (effect of non-delivery: charge void against an administrator), and 859I (certificate conclusive).
• The court summarised the authorities establishing that a registrar's certificate is ordinarily conclusive; however, those cases turned on the document actually delivered creating or evidencing the charge.
• Here the certificate referred to a charge dated 18 January 2022, which was the date of the amendment agreement; the amendment agreement did not create the charge and the debenture (20 December 2021) was not delivered for registration. The certificate therefore purported to register a charge that did not exist.
• Because the certificate did not relate to the instrument that created the debenture, the usual protection of the certificate could not be invoked to validate the unregistered debenture. Accordingly, the debenture was void as against the administrators under section 859H.

Procedural posture: The application was unopposed at the hearing; two respondents had limited contact and one indicated non-opposition through solicitors. The court gave a direction declaring the debenture void and provided these reasons subsequently.

The court granted the administrators' application and directed that the debenture dated 20 December 2021 was void as against the administrators under section 859H of the Companies Act 2006. The registrar's certificate could not be treated as conclusive because it purported to register a charge dated 18 January 2022 (the amendment agreement) which did not create the charge in question, and the certified document did not validate non-delivery of the actual debenture within the statutory period.