FISK and NACEY v TURVEY [2023] NZHC 2182

FISK and NACEY v TURVEY [2023] NZHC 2182

By consent the Court directed distribution of the remaining liquidation fund. It accepted the liquidators' exercise of power to settle Mr Turvey's claims under sch 6(f) of the Companies Act 1993 and, exercising its s 284 powers, ordered payment of $15,000 to Mr Turvey, payment of unpaid liquidator fees and costs, payment of Inland Revenue's preferential claim, and a pari passu distribution of the remaining specified unsecured claims (Orana, Inland Revenue admitted unsecured portion, Wellington City Council). The Court did not adjudicate the constructive trust claim on contested hearing because the parties consented to settlement and directions.

Citation
[2023] NZHC 2182
Parties
First Applicant (liquidator): John Howard Ross Fisk; First Applicant (liquidator): Richard John Nacey; Second Applicant (company in Liquidation): Vey Group Limited (in liquidation); First Respondent: Daryn Allen Turvey; Second Respondent: Aokautere Land Holdings Limited; First Interested Party: Trustees of the Orana Trust (David Vance and Ian Millard); Second Interested Party: Leslie William Fugle; Third Interested Party: Gregory John Sherriff; First Interested Non Party (creditor): Commissioner of Inland Revenue
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 August 2023
Procedural Posture
Company Liquidation — Directions Under Companies Act 1993 (s 284) / Stage Two: Post‑sale Distribution Directions (on the Papers)
Outcome
Application for directions granted by consent pursuant to s 284 Companies Act 1993
Legal Topics
Liquidation Distribution, Constructive Trust, Creditor Claim Admission and Priority, Preferential Creditors, Settlement of Claims by Liquidator, Court Directions (s 284)
Companies Law Insolvency/bankruptcy Property Law Tax Law Civil Procedure Liquidation Distribution Constructive Trust Creditor Claim Admission and Priority +3 more

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Parties

John Howard Ross Fisk

First Applicant (liquidator)

Richard John Nacey

First Applicant (liquidator)

Vey Group Limited (in liquidation)

Second Applicant (company in Liquidation)

Daryn Allen Turvey

First Respondent

Aokautere Land Holdings Limited

Second Respondent

Trustees of the Orana Trust (David Vance and Ian Millard)

First Interested Party

Leslie William Fugle

Second Interested Party

Gregory John Sherriff

Third Interested Party

Commissioner of Inland Revenue

First Interested Non Party (creditor)

Procedural Posture

Company Liquidation — Directions Under Companies Act 1993 (s 284) / Stage Two: Post‑sale Distribution Directions (on the Papers)

Legal Issues

  1. 1 Whether Daryn Turvey held an institutional constructive trust interest in the Property at time of sale
  2. 2 Validity and priority of competing creditor claims against Vey (Orana, Inland Revenue, WCC, Turvey)
  3. 3 Whether the liquidators' admissions/rejections of parts of Inland Revenue's claim were appropriate

Ratio Decidendi

By consent the Court directed distribution of the remaining liquidation fund. It accepted the liquidators' exercise of power to settle Mr Turvey's claims under sch 6(f) of the Companies Act 1993 and, exercising its s 284 powers, ordered payment of $15,000 to Mr Turvey, payment of unpaid liquidator fees and costs, payment of Inland Revenue's preferential claim, and a pari passu distribution of the remaining specified unsecured claims (Orana, Inland Revenue admitted unsecured portion, Wellington City Council). The Court did not adjudicate the constructive trust claim on contested hearing because the parties consented to settlement and directions.

Court Disposition

Application for directions granted by consent pursuant to s 284 Companies Act 1993

Orders

  • Pay Daryn Allen Turvey $15,000 from the liquidation fund
  • Pay the liquidators' unpaid reasonable fees, costs and disbursements in the liquidation