The Russell Cooke Trust Company Ltd. v Elliott
The secondary security in the seven loan charges is a fixed charge, not a floating charge, because the documentation imposes severe restrictions on the chargor's ability to deal with the assets, which is inconsistent with the nature of a floating charge.
- Parties
- Claimant: The Russell Cooke Trust Company Limited; Defendant: Elliott; Defendant: Fiona J McKenzie
- Jurisdiction
- England and Wales
- Judgment Date
- 09 March 2007
- Procedural Posture
- Civil / Ruling on Application Regarding Nature of Charge
- Outcome
- The secondary security in the seven loan charges is determined to be a fixed charge.
- Legal Topics
- Fixed Vs Floating Charges, Priority of Claims, Security Interests
Case Brief
Summary, issues, holding and outcome
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Parties
The Russell Cooke Trust Company Limited
Claimant
Elliott
Defendant
Fiona J McKenzie
Defendant
Procedural Posture
Civil / Ruling on Application Regarding Nature of Charge
Legal Issues
- 1 Whether the secondary security in seven loans is a fixed or floating charge
- 2 How the fund of £800,000 should be distributed among lenders
Ratio Decidendi
The secondary security in the seven loan charges is a fixed charge, not a floating charge, because the documentation imposes severe restrictions on the chargor's ability to deal with the assets, which is inconsistent with the nature of a floating charge.
Court Disposition
The secondary security in the seven loan charges is determined to be a fixed charge.
Orders
- The charges created over the secondary security are fixed and not floating charges.
- Further submissions to be heard regarding the mathematics of distribution of the fund.
Full Case Text
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