BEST INVEST NZ COMPANY LIMITED v JAPAN BUSINESS CONSULTING COMPANY LIMITED [2019] NZHC 1101
Bank evidence established that the applicant was a creditor for $1,099,900; East Wind Holdings Ltd had no director and a management vacuum creating a real risk of asset dissipation; to protect creditor interests pending substantive determination, it was necessary and appropriate to appoint interim liquidators,...
Source-derived case information.
- Citation
- [2019] NZHC 1101
- Parties
- Plaintiff: BEST INVEST NZ COMPANY LIMITED; Defendant: JAPAN BUSINESS CONSULTING COMPANY LIMITED; Defendant: EAST WIND HOLDINGS LIMITED; Defendant: EAST WIND NOMINEE LIMITED; Defendant: EAST WIND MEDICARE LIMITED; Defendant: EAST WIND PROGRAMME LIMITED; Defendant: EAST WIND COMPANY LIMITED
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 17 May 2019
- Procedural Posture
- Liquidation Under the Companies Act 1993 / Interim Application for Appointment of Interim Liquidators; Judgment on Interim Application
- Outcome
- Interim liquidators appointed for East Wind Holdings Limited
- Legal Topics
- Interim Liquidation, Appointment of Liquidators, Standing to Apply, Creditor Protection, Asset Preservation
Source-derived case record
Summary, issues, holding and outcome
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Parties
BEST INVEST NZ COMPANY LIMITED
Plaintiff
JAPAN BUSINESS CONSULTING COMPANY LIMITED
Defendant
EAST WIND HOLDINGS LIMITED
Defendant
EAST WIND NOMINEE LIMITED
Defendant
EAST WIND MEDICARE LIMITED
Defendant
EAST WIND PROGRAMME LIMITED
Defendant
EAST WIND COMPANY LIMITED
Defendant
Procedural Posture
Liquidation Under the Companies Act 1993 / Interim Application for Appointment of Interim Liquidators; Judgment on Interim Application
Legal Issues
- 1 Whether the applicant creditor has standing to apply for liquidation of East Wind Holdings Ltd
- 2 Whether interim liquidators should be appointed to protect assets where a company lacks directors and is at risk of dissipation
- 3 Whether the evidence of payments establishes creditor status and risk sufficient for interim relief
Ratio Decidendi
Bank evidence established that the applicant was a creditor for $1,099,900; East Wind Holdings Ltd had no director and a management vacuum creating a real risk of asset dissipation; to protect creditor interests pending substantive determination, it was necessary and appropriate to appoint interim liquidators, namely Messrs Downes and Moore, on the same powers and terms as previously appointed for related companies.
Court Disposition
Interim liquidators appointed for East Wind Holdings Limited
Orders
- Messrs Downes and Moore are appointed interim liquidators of East Wind Holdings Limited with the same powers and on the same terms as their appointment as interim liquidators of East Wind Company Ltd and East Wind Nominee Ltd
- The time of delivery of the decision marks the time of the order
Full Case Text
Judgment text and source record
1 paragraphs
BEST INVEST NZ COMPANY LIMITED v JAPAN BUSINESS CONSULTING COMPANY LIMITED [2019]NZHC 1101 [17 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-870[2019] NZHC 1101UNDER The Companies Act 1993IN THE MATTER OF The liquidation of JAPAN BUSINESSCONSULTING LIMITED and the EASTWIND group of companiesBETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND JAPAN BUSINESS CONSULTINGCOMPANY LIMITEDDefendantCIV-2019-404-872BETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND EAST WIND HOLDINGS LIMITEDDefendantCIV-2019-404-873BETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND EAST WIND NOMINEE LIMITEDDefendantCIV-2019-404-874BETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND EAST WIND MEDICARE LIMITEDDefendantCIV-2019-404-876BETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND EAST WIND PROGRAMME LIMITEDDefendantCIV-2019-404-879BETWEEN BEST INVEST NZ COMPANY LIMITEDPlaintiffAND EAST WIND COMPANY LIMITEDDefendantHearing: On the papersAppearances: R Sussock for the PlaintiffJudgment: 17 May 2019JUDGMENT (NO.2) OF ASSOCIATE JUDGE R M BELLThis judgment was delivered by me on 17 May 2019 at 4:30pmpursuant to Rule 11.5 of the High Court Rules.Deputy RegistrarSolicitors:Lowndes Jordan (Rachel Sussock), Auckland, for the Plaintiff[1] In my decision of 13 May 2019,1 I appointed Messrs Downes and Mooreinterim liquidators of East Wind Company Ltd and East Wind Nominee Ltd, but Ideclined to appoint them interim liquidators of the other companies, Japan BusinessConsulting Company Ltd, East Wind Holdings Ltd, East Wind Medicare Ltd and EastWind Programme Ltd. I reserved leave to the plaintiff to apply again if it could showon new evidence a basis for appointing interim liquidators of those companies.[2] Best NZ Company Ltd has provided new evidence and applies afresh forinterim liquidators to be appointed for East Wind Holdings Ltd. The interimliquidators of Best Invest NZ Company Ltd have obtained bank accounts. Recordsfrom the ASB bank show that $1,099,900 has been paid from Best Invest NZ CompanyLtd to East Wind Holdings Ltd and has not been repaid. It relies on transactions in2014 and 2015. With that evidence, Best Invest NZ Company Ltd has shown that itis a creditor of East Wind Holdings Ltd. That gives it standing to apply for aliquidation order. It may be assumed that East Wind Holdings Ltd held and maycontinue to hold assets corresponding in value to the payments made to it by BestInvest NZ Company Ltd. The company is in limbo as it does not have a director, andthe interim shareholder, the Crown, is unlikely to appoint a director. The widow ofthe deceased director cannot be traced. With the void in management and control ofthe company, there is a risk of assets disappearing. The interests of creditors shouldbe protected on an interim basis until the court can consider the substantive merits ofthe application against East Wind Holdings Ltd.[3] It is therefore appropriate to appoint interim liquidators. In CIV-2019-404-872I appoint Messrs Downes and Moore interim liquidators with the same powers and onthe same terms on which I appointed them interim liquidators of East Wind CompanyLtd and East Wind Nominee Ltd. The time of delivery of this decision marks the timeof the order.1 Best Invest NZ Company Ltd v Japan Business Consulting Company Ltd [2019] NZHC 1037.Associate Judge R M Bell