ROPER v NZ SAFETY BROKERS NEW ZEALAND LIMITED (IN LIQUIDATION) [2019] NZHC 3207 [5 December 2019]

ROPER v NZ SAFETY BROKERS NEW ZEALAND LIMITED (IN LIQUIDATION) [2019] NZHC 3207[5 December 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2019-412-37[2019] NZHC 3207UNDER Section 286 of the Companies Act 1993IN THE MATTER OF an application under s 286 for appointmentof new liquidatorBETWEEN GRAHAM IAN ROPERApplicantAND NZ SAFETY BROKERS NEW ZEALANDLIMITED (IN LIQUIDATION)RespondentHearing: 4 December 2019(By way of telephone conference)Counsel: B L Gray for the ApplicantJ C D Guest for the RespondentJudgment: 5 December 2019JUDGMENT OF ASSOCIATE JUDGE LESTERThis judgment was delivered by me on 5 December 2019 at 4.15pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar5 December 2019[1] The application brought by Mr Roper for appointment of new liquidators toNZ Safety Brokers New Zealand Ltd (in liquidation) ("the company") is set down forhearing on 12 December 2019 before me in Dunedin.[2] By way of background to this judgment, I refer to my Minute of23 August 2019 where I set out the potential for a practical resolution of theproceedings.[3] In short, the present liquidators, the Laings, were, without any admission offault on their part, prepared to take the pragmatic step of stepping down if their feeswere met. At that time Mr Guest for the Laings indicated $25,000 would be sufficient.[4] At that time, it was contemplated that the $25,000 would be held pendinga replacement liquidator's ability to seek a review of those fees through the RITANZfee review process.[5] Unfortunately, Mr Roper was not able to accumulate the necessary funds untilonly recently. As Mr Gray, for Mr Roper acknowledges, further fees have beenincurred by the liquidators including counsel's fees in relation to this application asthe liquidators could not ignore the looming hearing date.[6] With Mr Roper having been able to put the funds into trust, a memorandumwas filed by Mr Gray in effect seeking to revive the settlement proposal.[7] A telephone conference was held on 4 December 2019 to address thepossibility of settlement and as a result of discussions the following orders are able tobe made by consent:(a) Mr Roper is to pay in cleared funds $25,000 to Mr Guest's firm's trustaccount.(b) The current liquidators will stand down as liquidators uponMr Iain Nellies of Insolvency Management, providing the appropriateconsent to accept appointment.(c) If Mr Nellies, upon his appointment, confirms that he does not intendto take any steps to review the existing liquidators' fees then theexisting liquidators' fees will be final.(d) If Mr Nellies is not prepared to give that commitment within15 working days of his appointment then in the event that a review iscommenced, the retiring liquidators are able to raise a further fee notein relation to all their fees and disbursements, including counsel's fees,incurred to their date of resignation.(e) The hearing scheduled for 12 December 2019 is vacated and the aboveis in settlement of those proceedings, including issues of costs.[8] I record that the retiring liquidators' preference was for a RITANZ approvedliquidator to be appointed. Apparently, Mr Nellies is not RITANZ approved. I advisedcounsel and the liquidators who joined in the conference that Mr Nellies is well knownto the Court and to me personally and I had no hesitation in endorsing his appointmentas a suitable liquidator and I record that here.[9] For the avoidance of doubt, when I have referred to "the liquidators' fees"above, it is to be taken to be a reference to all liquidators' costs and disbursementsincluding counsel's costs.[10] I reserve leave to apply should any issues arise in relation to compliance withthe above directions or in relation to any further steps that may be required. I willleave it to counsel and to the retiring liquidators and the new liquidator to be appointedto liaise in respect of the necessary documentation of the agreement, again reinforcingthe leave that is reserved.[11] Again, for the avoidance of doubt, while I have said that the fixture set downfor Thursday 12 December 2019 in Dunedin is vacated with no issue as to costs, in theevent that either party has need to apply in respect of compliance, then the costs inrelation to those steps will be subject to the usual rules, that is costs can be sought ifthat is appropriate.[12] I record that this judgment was dictated during a telephone conference held toaddress the hearing on 12 December 2019. When the judgment is released, shouldcounsel identify any material issues that need to be readdressed then that will becovered by the leave.[13] I have also been asked to record the basis of the $25,000 payment. The existingliquidators have issued summary judgment proceedings against Mr Roper in theDistrict Court in respect of an alleged current account indebtedness. The liquidatorshave agreed to accept the sum of $25,000 in full and final settlement of thoseproceedings. I am advised that those proceedings are for call in the District Court inDunedin next week. Provided the cleared funds are paid as set out above, Mr Guesthas advised that those proceedings will be struck out with no order as to costs._________________________________Associate Judge LesterSolicitors:Anthony Hamel Lawyer, DunedinCopy to counsel: B L Gray, Barrister, DunedinDownie Stewart, Dunedin