Business

High Court being ‘actively misled’ on Russian firms’ solvency - claim

Judge says timing of examinership application ‘profoundly suspicious’

At the High Court on Monday, Kelley Smith SC expressed her clients’ strong concerns at an attempt to place GTLK Europe DAC and GTLK Europe Capital DAC into examinership just before winding-up petitions regarding them were due to be heard. Photograph: Nigel Stripe

Aodhan O'Faolain
Mon May 29 2023 - 16:42

The High Court has been “actively misled” about the solvency of two Russian state-owned aircraft and shipping leasing firms, GTLK Europe DAC, and GTLK Europe Capital DAC, which are registered in Ireland.

The claim was made by barrister Kelley Smith SC on behalf of several creditors which are seeking to have the two entities liquidated.

At the High Court on Monday, counsel expressed her clients’ strong concerns at an attempt to place the firms into examinership just before the winding-up petitions were due to be heard.

The High Court had fixed the hearing of that application, which GTLK had opposed on the ground that the firms are not insolvent, for Monday morning.

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Counsel said that her clients, which claim to be owed $178 million (€162.5 million) by the GTLK Europe group, will be fully opposing the examinership petition, which she submitted is “fatally flawed”.

One of the grounds of its opposition will be that the company has claimed in the winding up action that the firms are solvent, while in the examinership proceedings said they are insolvent.

Counsel said this amounted to the court being “actively misled” about the firms’ solvency.

In addition to seeking the protection of the Irish courts last Friday, which counsel said was the last working day before the winding-up hearing, counsel said her clients’ lawyers were informed on Saturday morning that the companies want the dispute to go to arbitration in the UK.

Counsel said the companies indicated an intention to seek to injunct the hearing of the winding-up petitions in this jurisdiction to allow that arbitration to take place.

Counsel said the issue of whether her clients were bound by any arbitration clause was something that was to be addressed, by way of legal submissions, in the winding-up applications.

Counsel said her clients were concerned about these developments, and arising from fears that their position could be further prejudiced, asked the High Court to strike out the examinership application and allow the winding-up petitions to proceed as originally fixed by the court.

In response, Mr Justice Brian O’Moore said while he had strongly considered striking out the examinership application as being an abuse of process, he believed “the best course of action” was to allow the matter to proceed so that all parties including potential other creditors can be heard.

While he was minded to adjourn the hearing of all the petitions for a week, after considering submissions from Ms Smith he fixed the hearing to Tuesday’s vacation sitting of the court.

The judge said the application to wind up the firms had come before him several weeks ago and he had case managed the application.

The judge, who last Friday had expressed his scepticism about the examinership application, said the timing of that application was “profoundly suspicious”.

He said the companies had, in an affidavit sworn on their behalf, disputed the creditors’ claim that they are insolvent.

This contrasted with an independent expert’s report and an affidavit sworn by the firms’ director Roman Lyadov as part of the examinership application which stated that the companies are insolvent.

The difference between the two very contrasting positions should have been explained to the court but were not, the judge said.

He said he was suspicious of the application to have the dispute between the creditors and the companies go to arbitration in the UK.

The judge added he was surprised the companies had no prior notice of last week’s announcement that the Russian state is to cover a huge debt owed by the GTLK group, which is owned by the Russian Federation’s Ministry of Transport.

In a decree issued last week, the Russian state purportedly agreed to cover $1.5 billion of the two firms’ debts, the judge said.

The application to wind up the firms, which are worth more than $4.5 billion, has been brought on the grounds that they are insolvent and unable to pay their debts.

The four creditors which are seeking to wind up the GTLK firms and are represented by Ms Smith, instructed in the proceedings by William Fry solicitors, are Trinity investments DAC and an associated entity, Allestor Europe Multi Asset Portfolio, a sub fund of Allestor Capital ICAV; Ben Oldman Special Situations Fund LP and Sona Credit Master Fund Limited, which are both registered in the Cayman Islands.

The four, whose petition is being supported by other creditors of the group, want Damien Murran and Julian Moroney of Teneo Restructuring Ireland appointed as joint liquidators to the companies, which have been hard hit by international sanctions imposed on Russia following the invasion of Ukraine.

If a liquidator is appointed to the firms, it would be the largest winding up in the history of the Irish State.

Previously the High Court heard that GTLK is Russia’s largest leasing business in the transport sector, leasing ships and aircraft to customers all over the world.

Several directors of GTLK’s ultimate parent are government ministers or deputy ministers in the Kremlin.

The creditors claim the economic sanctions imposed on Russia following the invasion of Ukraine in February 2022 have had “a devastating effect” on the GTLK Europe Group.

GTLK’s Europe Group’s international leasing business is headquartered in Dublin, and the firms which the winding-up applications apply to are at the top of the group’s structure.

The creditors claim they entered into a series of agreements to refinance the respondent firms’ debts, where they advanced significant funds to GTLK Europe Capital, of which GTLK was a co-guarantor.

Since the sanctions were imposed the creditors claim there has been significant default by GTLK Europe Capital regarding its repayment obligations, specifically the requirement to repay interest due on the loans.

The companies, in their examinership petition, claim that under that process the firms have a reasonable prospect of survival as going concerns and that the creditors would do better that way than when compared to a winding-up scenario.

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