ENCOREFX (NZ) LIMITED [2020] NZHC 870

ENCOREFX (NZ) LIMITED [2020] NZHC 870

Given the Covid-19 restrictions and unreliable postal service, requiring notice was impracticable and could cause prejudice; no material prejudice to creditors would arise because leave was reserved to apply to vary the orders, sealed orders would be provided to known creditors, and an extension would likely increase creditor returns by permitting a combined sale; accordingly leave to proceed without notice was granted, a five working day extension of the convening period was granted, and prior orders permitting remote meeting and voting (with clarification on postal vote timing) were extended to the watershed meeting.

Citation
[2020] NZHC 870
Parties
Company: ENCOREFX (NZ) LIMITED; Applicant/administrator: REES GRAHAM LOGAN; Applicant/administrator: ADAM PAULS NIKITINS; Applicant/administrator: STEWART ALEXANDER McCALLUM
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2020
Procedural Posture
Companies Act 1993 Administration Application / Without Notice Urgent Application for Extension of Convening Period and Extension of Orders for Method of Meeting and Voting
Outcome
Application granted; leave to proceed without notice granted; extension of convening period and extension of prior orders for remote meeting and voting granted
Legal Topics
Administration, Watershed Meeting of Creditors, Extension of Convening Period, Remote Meetings and Voting, Without Notice Applications
Company Law Insolvency Civil Procedure Public Health (covid 19 Implications) Administration Watershed Meeting of Creditors Extension of Convening Period Remote Meetings and Voting +1 more

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Parties

ENCOREFX (NZ) LIMITED

Company

REES GRAHAM LOGAN

Applicant/administrator

ADAM PAULS NIKITINS

Applicant/administrator

STEWART ALEXANDER McCALLUM

Applicant/administrator

Procedural Posture

Companies Act 1993 Administration Application / Without Notice Urgent Application for Extension of Convening Period and Extension of Orders for Method of Meeting and Voting

Legal Issues

  1. 1 Whether to grant a five working day extension of the convening period under s 239AT of the Companies Act 1993
  2. 2 Whether the application can be heard and determined without notice under r 7.46 of the High Court Rules 2016
  3. 3 Whether to extend prior orders for remote holding of and voting at the watershed creditors' meeting and clarify postal vote return requirements

Ratio Decidendi

Given the Covid-19 restrictions and unreliable postal service, requiring notice was impracticable and could cause prejudice; no material prejudice to creditors would arise because leave was reserved to apply to vary the orders, sealed orders would be provided to known creditors, and an extension would likely increase creditor returns by permitting a combined sale; accordingly leave to proceed without notice was granted, a five working day extension of the convening period was granted, and prior orders permitting remote meeting and voting (with clarification on postal vote timing) were extended to the watershed meeting.

Court Disposition

Application granted; leave to proceed without notice granted; extension of convening period and extension of prior orders for remote meeting and voting granted

Orders

  • Leave granted to determine application without notice
  • Five working day extension of the convening period granted to close of 7 May 2020