LEVIN & MADSEN-RIES v MARTIN [2017] NZHC 1354

LEVIN & MADSEN-RIES v MARTIN [2017] NZHC 1354

The disposition of $249,163 was set aside under s 348 because the Company was unable to pay its due debts at the time, the disposition prejudiced and delayed the Commissioner of Inland Revenue, and therefore the sum vests back in the Company; interest and costs were properly awarded against the trustee.

Citation
[2017] NZHC 1354
Parties
Applicant Liquidator: Henry David Levin; Applicant Liquidator: Vivien Judith Madsen-Ries; Respondent Trustee: Troy Nathan Martin (as trustee of TM Trust)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 June 2017
Procedural Posture
Application Under S 348 Property Law Act 2007 / Judgment on Formal Proof (hearing 20 June 2017)
Outcome
Disposition set aside; sum vested in Company; interest and costs awarded against respondent
Legal Topics
Set Aside Disposition, Voidable Transaction, Preference/creditor Prejudice, Recovery of Company Property, Interest and Costs
Property Law Insolvency Trusts Tax Law Civil Procedure Set Aside Disposition Voidable Transaction Preference/creditor Prejudice +2 more

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Parties

Henry David Levin

Applicant Liquidator

Vivien Judith Madsen-Ries

Applicant Liquidator

Troy Nathan Martin (as trustee of TM Trust)

Respondent Trustee

Procedural Posture

Application Under S 348 Property Law Act 2007 / Judgment on Formal Proof (hearing 20 June 2017)

Legal Issues

  1. 1 Whether the disposition of $249,163 should be set aside under s 348 Property Law Act 2007
  2. 2 Whether TM Investments (Waikato) Ltd was insolvent at the time of the disposition
  3. 3 Whether the disposition prejudiced, hindered, delayed or defeated the Commissioner of Inland Revenue

Ratio Decidendi

The disposition of $249,163 was set aside under s 348 because the Company was unable to pay its due debts at the time, the disposition prejudiced and delayed the Commissioner of Inland Revenue, and therefore the sum vests back in the Company; interest and costs were properly awarded against the trustee.

Court Disposition

Disposition set aside; sum vested in Company; interest and costs awarded against respondent

Orders

  • The disposition of $249,163 is set aside and the sum of $249,163 vests in the Company.
  • Troy Nathan Martin, as trustee of TM Trust, is to pay interest at the judicature rate of 5% on $249,163 from 31 March 2011 to 20 June 2017 totalling $77,577.49 (daily rate $34.13, per annum $12,458.15, days 2,273).