NOYCE V WALKER AND CHAPMAN HC AK CIV-2011-404-007007

NOYCE V WALKER AND CHAPMAN HC AK CIV-2011-404-007007

Because the February 2009 instruments purported to reinstate security that depended on an Annexure Schedule which remained blank, and because no general security agreement was produced, the court could not be satisfied a charge existed to support the receivers' appointment; the question of existence and validity of the securities must be determined with Fifer and Compark as parties, and pending that resolution the court exercised its power under s35(1) Receiverships Act 1993 to order the receivers to cease to act until further order.

Citation
openlaw-37f80ec9_3bda_4a52_bd8f_2481822a1406.pdf
Parties
Applicant (liquidator): Digby John Noyce; Respondent (receiver): Robert Walker; Respondent (receiver): Gilbert Chapman
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 February 2012
Procedural Posture
Application Under the Receiverships Act 1993 Seeking Declaration That Receivers Were Invalidly Appointed / Interlocutory Directions Hearing With Oral Judgment and Stay of Receivership
Outcome
Court ordered interlocutory relief: receivers to cease acting until further order; parties to be joined and procedural timetable set; costs reserved
Legal Topics
Validity of Security Interest, Invalid Appointment of Receivers, Voidable Transactions Under Companies Act S294, Challenge to PPSA Financing Statement S165, Requirement for Security Description in Annexure, Joinder of Parties to Determine Existence of Charge
Company Law Receivership Personal Property Securities Insolvency Contract Law Validity of Security Interest Invalid Appointment of Receivers Voidable Transactions Under Companies Act S294 +3 more

Case Brief

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Parties

Digby John Noyce

Applicant (liquidator)

Robert Walker

Respondent (receiver)

Gilbert Chapman

Respondent (receiver)

Procedural Posture

Application Under the Receiverships Act 1993 Seeking Declaration That Receivers Were Invalidly Appointed / Interlocutory Directions Hearing With Oral Judgment and Stay of Receivership

Legal Issues

  1. 1 Whether the February 2009 agreements created a charge sufficient to support the appointment of receivers
  2. 2 Whether the purported securities are voidable transactions under s294 Companies Act 1993
  3. 3 Whether the financing statement under the PPSA is vulnerable to discharge under s165

Ratio Decidendi

Because the February 2009 instruments purported to reinstate security that depended on an Annexure Schedule which remained blank, and because no general security agreement was produced, the court could not be satisfied a charge existed to support the receivers' appointment; the question of existence and validity of the securities must be determined with Fifer and Compark as parties, and pending that resolution the court exercised its power under s35(1) Receiverships Act 1993 to order the receivers to cease to act until further order.

Court Disposition

Court ordered interlocutory relief: receivers to cease acting until further order; parties to be joined and procedural timetable set; costs reserved

Orders

  • Applicant to file an amended application naming Fifer Residential Limited and Compark Properties Limited as respondents and serve them by 7 March 2012
  • Proceeding listed for call in the Duty Judge List on 15 March 2012; counsel to file a joint memorandum or separate memoranda in advance of that call