KERRY TREVOR BROWN v JAMES EMILY PROPERTIES LIMITED [2014] NZHC 1221

KERRY TREVOR BROWN v JAMES EMILY PROPERTIES LIMITED [2014] NZHC 1221 [30 May 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004319[2014] NZHC 1221BETWEEN KERRY TREVOR BROWNPlaintiffAND JAMES EMILY PROPERTIES LIMITEDDefendantOn the papers: 7 May 2014Appearances: I M Hutcheson for the PlaintiffP Stevenson for the DefendantJudgment: 30 May 2014INTERIM JUDGMENT OF ASSOCIATE JUDGE SARGISSONThis judgment was delivered by me on 30 May 2014 at 4.45 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:P Stevenson, AucklandStafford Klaasen, AucklandI M Hutcheson, AucklandThe Small Law Firm Ltd, AucklandCase officer: Lena WongThe application[1] The plaintiff, Mr Brown, is shareholder in the defendant company. He seeks an order for liquidation of the defendant company under s 241 of the Companies Act 1993 on the ground that it is just and equitable to wind up the company. Mr Brown is in his late sixties, and his application arises out of his wish to have certainty and control over his inheritance.[2] The defendant company opposes the application.Background[3] Mr Brown and his four younger siblings are the only shareholders in the defendant company and a related company, Brown's Brushware Ltd. The former is a property holding company. It owns two properties at Portage Road, New Lynn, Auckland, which it leases to the latter for its manufacturing enterprise.[4] Mr Brown and his siblings inherited their shares in the two companies from their mother, Jewel Winifred Brown. They are the beneficiaries of her estate. They fell into dispute over the administration of Mrs Brown's estate and became embroiled in proceedings. On 26 September 2011 they signed a Deed of Family Arrangement for the purpose of settling the proceedings and disentangling their financial interests. Mr Brown's three brothers signed a Deed of Family Arrangement in their capacity as directors of the defendant company and Brown's Brushware Ltd. Mr Brown and his sister signed as shareholders of the two companies. All five signed also as beneficiaries of the estate.[5] Under the terms of the Deed, the estate's interest in a loan of $755,179.84 made to the defendant company on 18 December 20071 was transferred to the five siblings. Additionally, the Deed imposed certain obligations on the directors. Clause 7 materially provides :1 Under the Deed the loan was transferred to them as tenants in common in equal shares. Under the terms of the loan repayment was stipulated by June 2008 and thereafter on demand.The Directors shall offer the companies' assets for sale to interestedparties by 31 July 2012 and thereafter shall try to sell the assets at the best price and on the best terms possible. The directors must take all reasonable steps in their sole discretion, to groom the companies for sale by 31 July 2012 if possible, or 31 July 2013 at the latest.(Emphasis added).[6] It is common ground that despite the provisions of this clause, no assets were offered for sale by 31 July 2012 and by 31 July 2013 no attempts had been made to sell the assets and no assets had been sold.[7] When July 2013 came and went without any sale in sight, Mr Brown became concerned about the lack of progress. He wanted the defendant company to pay out his one-fifth share of the loan and to have his interest in the two companies paid out. He wanted to take charge of his assets because of his advancing age.[8] With this end in mind, on 5 September 2013 Mr Brown served a statutory demand on the defendant company seeking payment of $128,035.87. This amount represented his share in the loan, the balance of which stood at the time at $640,179.34. Mr Brown had earlier made demand for repayment of his share of the loan, but to no avail.[9] Despite Mr Brown's entitlement to payment, the defendant company did not comply with or seek to set aside the statutory demand within the time allowed in the demand, and on 25 September 2013 Mr Brown filed his statement of claim seeking an order for the defendant company's liquidation. The grounds set out in the application are alternative grounds: in essence the first is that the company is presumed insolvent under s 287 as it failed to comply with the statutory demand, and the second that liquidation would be just and equitable in order to enforce cl 7 of the Deed.[10] On 11 October 2013 the defendant company filed a statement of defence, opposing both grounds for an order for liquidation. The application was allocated a defended fixture. The hearing took place before me and while awaiting my reserved decision, the parties began settlement negotiations.[11] The negotiations were unsuccessful. They did however result in the defendant company paying Mr Brown $128,726.87, being the amount claimed in the statutory demand plus interest of $691 for the period 1 February to 21 March 2014. The payment was made on 18 March 2014. In these circumstances, counsel for Mr Brown advises, an order for liquidation is sought in reliance on the just andequitable ground only. He confirms the insolvency ground in Mr Brown'sapplication is abandoned. I proceed on that basis.[12] The remaining issue for determination (apart from costs and a request by the defendant company for a confidentiality order, which I put aside momentarily) is whether Mr Brown has made out his case that an order for liquation is just and equitable as a means to enforce the terms of the Deed.The parties' positions[13] It is Mr Brown's position that the directors of the defendant company have done little or nothing to prepare and sell the assets of the two companies, and are in breach of the requirements of cl 7. He points out that the directors acknowledge in evidence that the properties were not on the market in October 2013, and that the evidence shows the directors used the services of a planning consultant for the selling process only after the company was served with the statutory demand. He contends that the justice and the equity of the situation calls for the defendant company to be placed into liquidation and for an independent liquidator to be appointed to ensure that the sale process is put in train and that the assets are sold in accordance with the requirements of cl 7.[14] Mr Brown contends that unless an independent liquidator is put in control of the company there is reason to expect that the directors will continue to delay selling the assets, and he will be deprived indefinitely of the very benefit that the Deed intended. He says that instead of proceeding to a sale, the directors are continuing business as usual; pursuing the defendant company's expansion into the Australianand North American markets; making media statements about the company's longterm direction; entering into long term lease and hire purchase agreements; and acquiring new equipment.[15] Counsel for Mr Brown submits that the directors' obligation under cl 7 is toproceed with and to conclude a sale of company assets by 31 July 2013 and that further provisions of the Deed amplify this. He submits that notably the Deed expressly permits a beneficiary to take action after 31 July 2013 if the directors breach the Deed by not honouring the obligations relating to sale or otherwise. In any such case, any beneficiary may take such action against the companies and the directors, including by formal application to the Court for relief, the only restriction being that formal application cannot be made until after 31 July 2013.[16] Counsel also relies on cls 9 and 10 of the Deed, which state:9. No Beneficiary may take any action against the Companies or the Directors (other than for breach of this Deed), or initiate the procedure for selling their shares in terms of the constitutions of the Companies before 31 January 2014.10. After 31 July 2013 any Beneficiary may apply to the Court for relief under section 174 of the Companies Act 1993, or otherwise.[17] Counsel submits that these provisions indicate that a beneficiary is notobliged to accept the directors' inaction and is entitled to seek the Court'sintervention to ensure that the sale process progresses to a conclusion. Further, he argues, were it not the intention of the parties to the Deed to allow application to theCourt to enforce a managed sale of the company's assets, these provisions would not be needed.[18] The defendant company takes a different position on the directors'obligations under the Deed. Counsel for the company argues that the timeframes in cl 7 for taking steps are merely in the nature of aspirations rather than prescriptive and that it is cl 8 that is the operative and more pertinent provision. Clause 8 states:8. If no resolution is reached by 31 January 2014 as to the sale of thecompanies' assets, then the shareholders and directors are to realise andcall in the assets for the best price possible at that date[19] Counsel makes the submission that the effect of cl 8 is that the directors are only required to realise the assets of the company if no resolution as to the sale has been achieved by 31 January 2014, and that it therefore prevents any beneficiarytaking action against the company or its directors for relief for breach of the terms ofthe Deed before that date. Counsel argues that on this basis Mr Brown's action hasbeen commenced prematurely and that any intervention is unjustified.[20] Counsel also argues that it would be wrong to liquidate the company for breaches (if any) of the directors as the company is not a signatory to the Deed and cannot be bound by cl 7 (or indeed any of the provisions of the Deed). She makes the further submission that even if that is not an impediment to relief, liquidation would be drastic and unfair and that in the overall circumstances of the case Mr Brown is acting unreasonably in seeking an order for liquidation.[21] Though accepting that there may have been minor slippage in adhering to the timeframes in cl 7, counsel submits:(a) it is not quite correct that the directors have done nothing to prepare the assets for sale and that they have taken and are continuing to take worthwhile steps to prepare the company for sale, including obtaining an independent report on maximising the value of the assets, which Mr Brown has declined the opportunity to consider.(b) There are in any event alternative remedies to liquidation available under s 174, which the Deed mentions. He could, she points out, seek and order requiring the company or the other shareholders to purchase his shares if he believes the company is being conducted in a manner that is unfairly prejudicial to him.[22] Additionally, counsel for the defendant company submits that there are a number of factors that count against a finding that liquidation would be just and equitable - that Mr Brown has not sought to sell his shares to the other shareholders; that the defendant company continues to trade profitably; and that there is no suggestion of mismanagement or dishonest conduct by the directors. She submits that the Court should also have regard to the wishes of the majority of shareholders.2In support counsel cites Mercantile Credits Limited v Foster Clark (Australia)2 Re Thames Freightlines Limited (1981) NZCLC 98,112 (HC).Limited3 where the Court was held that the right of a creditor to put the company into liquidation is a right possessed on behalf of the whole class of creditors, and hence the wishes of the majority are a relevant consideration. Lastly, counsel submits that liquidation is likely to reduce the value of the assets and therefore to be unfair and prejudicial to all of the shareholders who will ultimately share equally in the proceeds of sale.Issues[23] I do not think counsel's submission that the defendant company is not asignatory to the Deed and therefore should be the subject of orders gives rise to any serious issues of substance. Whether or not the company is a signatory does not provide the defendant company with a shield to an order for liquidation as counsel seems to suggest. Liquidation may be just and equitable whether or not the company is a party to the Deed. I do not therefore deal with this issue any further.[24] Nor do I think there is any substance to the contention that the directors arenot in breach of cl 7 and therefore that Mr Brown's application is premature. Forreasons I will expand upon, I am in no doubt that the directors have been in breach of the Deed for some time and Mr Brown cannot be criticised for seeking the court'sintervention.[25] It follows that that the primary issue at the root of the dispute is one of remedy – is liquidation the just and equitable remedy to hold the directors to their obligations to the one sibling beneficiary who wants compliance, or is this a case where it would be just to meet his concerns by some other form of intervention warranted under s 174? This is I think where the main argument lies.[26] I turn then to the reasons why I consider the directors to be in breach, and to the question whether there should be an order for liquidation of the defendant company to remedy the breach. I pause first to set out the relevant legal principles governing the application.3 Mercantile Credits Limited v Foster Clark (Australia) Limited [1965] ALR 547.Relevant principles[27] The application is made under s 241. Section 241 empowers the court to make an order placing a company into liquidation, including where the company is insolvent or where such order is just and equitable. Relevantly the power may be exercised on the application of a shareholder or as is more usual on the application of a creditor.[28] As has been noted by Gendall J, it is well known that s 241 and s 1744overlap.5 Section 174 empowers the court to make orders if it is satisfied that the affairs of a company are being conducted in a manner that is oppressive or unfairly discriminatory or unfairly prejudicial to a shareholder, and it is just and equitable to do so. Such orders include requiring the company or any other person to acquire theshareholder's shares to pay compensation to a person, or orders regulating the future conduct of the company, or putting the company into liquidation.[29] Section 174 therefore allows a more flexible approach to remedy when dealing with the concerns of a shareholder affected by the actions of a company. The Court of Appeal noted in Latimer Holdings Ltd v Sea Holdings6 that the "oppression remedy" originated as an alternative to winding up on the just and equitable ground: 7The argument was that winding up was much too drastic a remedy to utilise in many cases and that it will be desirable to give the courts wider powers to intervene to set matters to right, whether by ordering one party to buy the other out or otherwise regulating the affairs of the company.[30] The just and equitable jurisdiction enables the court, as equity always does, to subject the exercise of legal rights to equitable considerations: considerations, that is, of a personal character arising between one individual and another which may make it unjust or inequitable to insist on legal rights or to exercise them in a particular way.4 The full text of both sections is set out in the schedule attached to this judgment.5 The Orthodontic Centre Ltd v M D Courtney Orthodontics Ltd & Anor HC Palmerston North CIV-2006-454-238, 14 September 20076 Insolvency Law and Practice (online looseleaf ed, Brookers) at [CA241.03]7 Latimer Holdings Ltd v Sea Holdings [2005] 2 NZLR 328 at [57][31] Also apposite is the observation of Richardson J in Thomas v H W Thomas Ltd8 that "the remedy of winding up a company is a blunt and drastic remedy ringed with difficulties and disadvantages."9[32] It has been said that the Court's discretion to order liquidation on just andequitable grounds is not fettered either in relation to the factors justifying an order or in relation to the circumstances where an order must be refused.10[33] It is nonetheless relevant to have regard to whether the applicant is acting unreasonably by seeking liquidation rather than another remedy, as a factor in evaluating whether liquidation would be just and equitable.11[34] There is authority for the proposition that liquidation is a last resort. InMarryatt v PC Home Hire Ltd12 the Court noted that if it is more appropriate that an order be made under s 174 because it is just and equitable to do so, then it is to be preferred. This was affirmed in The Orthodontic Centre Ltd v M D Courtney Orthodontics Ltd,13 where Gendall J found that it would be "radical" and "extreme"to wind up a viable company on the basis of a mere disagreement between shareholders.14 Though noting that the Court's discretion is unfettered and generalguides to the solution of individual cases are not possible, His Honour observed that a very strong case for liquidation would be required in such circumstances to meet the just and equitable test for liquidation. For liquidation to be warranted on just andequitable grounds, he observes, "there has to be some form of oppression in theguise of burdensome, harsh or wrongful conduct".15 His Honour ordered theapplicant's shares to be acquired by the other shareholder. The context was a breakdown in the business relationship of two orthodontists who each held a 50 per cent shareholding in a shared service company.8 Thomas v H W Thomas Ltd [1984] 1 NZLR 686 (CA).9 At 609.10 Jenkins v Supscaf Ltd [2006] 3 NZLR 264 (HC) at [134].11 Insolvency Law and Practice, above n [29] at [CA 241.03(4)].12 Marryatt v PC Home Hire Ltd (2002) 9 NZCLC 263,033 (HC).13 The Orthodontic Centre Ltd v M D Courtney Orthodontics Ltd, above n [28].14 At [33].15 At [32].[35] The unwillingness of a majority shareholder to buy the shares of a minority shareholder may also be sufficient to invoke the winding up remedy.16 A management deadlock after irretrievable breakdown between directors and shareholders may also be sufficient.17 Jenkins v Supscaf Limited 18is a case where an order for liquidation was granted upon an irretrievable breakdown between shareholders because there was no other possible remedy available, as one group had declined an opportunity to acquire the shares of the other.DiscussionBreach of the Deed[36] On the evidence before me, I am satisfied the directors are in breach of the Deed. My reasons can be stated briefly.[37] First I am in no doubt that, on any tenable view of cl 7, the directors are in breach of cl 7. The clause envisages a staged approach to sale that involves the directors commencing a genuine and timely sale process:(a) By initially offering the assets to interested parties (not excluding any interested shareholders or beneficiaries) by 31 July 2012, and if no sale eventuates, thereafter trying to sell the assets – not on a fire sale basis, but rather at the best price and on the best terms possible in the interests of all of the beneficiaries.(b) By having the assets of the defendant company (indeed of both companies) genuinely on the open market by 31 July 2013.(c) Throughout the process, taking proper steps to groom the company so that it is in a proper state for sale by 31 July 2012 if possible or 31 July 2013 at the latest. The directors did not instigate such a process.16 At [34].17 Vujnovich v Vujnovich [1988] 2 NZLR 129 (CA), where the Court of Appeal declined to order the purchase of shares of one shareholder by the others, noting that only in unusual circumstances would the Courtrequire the sale of an unwilling majority's interest in a majority shareholder.18 At [32].[38] There is little to suggest conscientious efforts were made to comply to the letter or the spirit of these requirements. The overall impression I have from the evidence is that the directors were anxious to delay any such efforts, in favour ofattempts to build up the defendant company's position over an indefinite period. Theresult was that directors were well and truly in breach by the time that Mr Brown commenced his proceeding.[39] Secondly, by the time the hearing took place the directors were also in breachof cl 8. Clause 8 makes clear that if the sale of companies' assets is not concludedby 31 January 2014, the assets must be sold for the best price the market will offer at that date. I am in no doubt that compliance with this clause calls for a degree of conscientious activity before that date, and the direction to call in the assets by 31 January is a last resort if such efforts have failed to produce a sale. I reject the suggestion that the direction can be construed, as counsel suggests, as a justification for not taking genuine steps over the preceding eighteen months to actually sell the assets. There were none.[40] I am satisfied that the directors have not fulfilled their obligations under cl 7 and nor have they fulfilled their more recent obligations under cl 8.[41] I also reject the submission that counsel for the defendant company makes that there is no case for Mr Brown taking court action. I do not accept that when one reads cls 7 to 10 together that there is room for the argument that they actually prohibit him bringing his action as counsel seems to suggest. The temporalrestriction placed on beneficiaries' rights to take action in cl 9 clearly does not apply to action against the company or the directors where the action is for breach of the Deed.[42] I accept also that pursuant to the Deed, Mr Brown is entitled to seek relief, including by way of formal application to the Court should the breach continue after 31 July 2013, as indeed it has. It is clear that as a beneficiary Mr Brown was entitled to commence this proceeding to seek a remedy. Additionally, his application can have come as no surprise to the directors. The specific reference in the Deed to abeneficiary's entitlement to apply to the Court for relief under s 174 is suggestive ofa factual context in which the parties entering the Deed recognised that the directors'failure to honour their obligations under cl 7 would or could be oppressive, and that it would be just and equitable for the Court to intervene.[43] I am left in no doubt that the parties themselves, by the terms of their Deed,recognised the appropriateness of a shareholder / beneficiary in Mr Brown's positionbeing permitted to seek a remedy against the company as a means of enforcing the Deed or extracting his interest in the company on the just and equitable ground. Clause 9 of the Deed expressly makes available to him the right to make application for that purpose under s 174 or "otherwise". I am in no doubt that also permits anapplication for liquidation under the more restrictive provisions of s 241. If the parties considered liquidation could never be justified, the Deed would have said so.Is liquidation just and equitable?[44] Despite Mr Brown's entitlement to seek an order for liquidation, I do notaccept, as counsel for Mr Brown appears to contend, that Mr Brown has an automatic entitlement to an order for liquidation for breach. The terms of cls 9 and 10 of the Deed refer specifically to action under s 174 which allows for a range of remedies. That suggests the Deed was entered into in a factual context in which the parties envisaged the need for relief but did not see that an order for liquidation should not be the inevitable consequence of breach. Rather, they accepted a more open-ended approach to remedy. That is not surprising given that breach may take different forms and have degrees of seriousness.[45] Nor do I accept that the point has arrived where liquidation is inevitably the appropriate remedy and that I should therefore make an order under s 241. In reaching this view the following factors weigh against such an order, at least at this stage:(a) Liquidation is a drastic step.(b) The defendant company has paid Mr Brown's share of the loan, albeitvery belatedly. This has cleared a substantial part of the sumMr Brown hopes to get out of a liquidation of the defendant company. What entitlement remains to him is unclear on the evidence before me, but it appears not to be so substantial that the defendant company or the other shareholders would lack the ability to properly compensate him for it.(c) The company is not trading or being managed to the detriment ofMr Brown's interests, pending payment of appropriate compensation.(d) The other shareholders have elected to leave in their shares of the loan– as they see it, for the good of the company.(e) There appears to be substance in the position of Mr Brown's siblings that liquidation would be costly and harmful to all of the shareholders.The liquidator's costs would have to be borne by the company andultimately the shareholders. Additionally, liquidation may not result in the best possible price for the assets.(f) Mr Brown has apparently not sought to sell his shares to the other shareholders, but on the other hand the other shareholders have not sought to acquire his shares.(g) The other shareholders' particular desire (to continue to trade and to ultimately achieve a sale that they consider all of the shareholders should bide their time for) should not be at the cost of deferringMr Brown's entitlement indefinitely, but it may be that both sides'objectives can be accommodated.[46] I accept that in assessing these considerations, the fact that the majority of shareholders oppose liquidation is a relevant consideration, but it is not conclusive.19Indeed, here it cannot be determinative. A distinguishing factor between the present case and others where the Court has declined to order liquidation is the Deed. Theparties have an agreement that contemplates a sale of the company's assets. The19 Re J R S Garage Ltd [1961] NZLR 632 (SC).dispute between Mr Brown and the other shareholders must be seen in that context, rather than as a mere falling out. The bottom line is that if the other shareholders refuse to buy out Mr Brown's shares and delay sale for an indeterminate time until they consider the time is right, liquidation would seem inevitable.[47] For the present however, I am not satisfied that Mr Brown's position amountsto such compelling or special circumstances as to justify an immediate order to wind up a solvent and viable company, especially when the possibility of a viable solution remains (with the other shareholders acquiring his shares).Result[48] I propose in the circumstances to issue this judgment as an interim judgment to allow the defendant or the other shareholders the opportunity to take proper stepsto purchase Mr Brown's shares at a fair market value. It is an unfortunate anomalythat an Associate Judge does not have jurisdiction to make orders to require this tohappen. However I set out for the parties' consideration the orders that were madeby Gendall J in The Orthodontic Centre Ltd v M D Courtney Orthodontics Ltd20 for their consideration:21Mr Tobin, or some other person or body as he shall direct, is to acquire the shares held by M D Courtney Orthodontics Ltd in The Specialist Orthodontic Centre at a fair market price. If the shareholders cannot agree before 19 September 2007 as to the identity of an expert to fix a fair market price for those shares, that expert is to be appointed by the President of the New Zealand Society of Accountants. Costs of the expert in assessing a fair market value of the shares is to be shared equally between N M Tobin Orthodontics Ltd and M D Courtney Orthodontics Ltd. The valuation date to be taken for the fixing of value of the shares is 1 February 2006. Whilst the expert is to value the shares in his/her capacity as an expert and not as an arbitrator, nevertheless each shareholder shall have the right to make such submissions or representations as it thinks appropriate to the valuer, but the valuer is entitled to decide in his/her discretion when any further submissions are assessed. Upon the fixing of a fair market value of the shares by the valuer payment for those shares and the transfer of them is to be no later than 28 days after the value is fixed.[49] If the parties proceed in this way, I would anticipate that the cost of the process will be borne by the defendant company, because under the Deed it would20 The Orthodontic Centre Ltd v M D Courtney Orthodontics Ltd, above n [28].21 At [38].have to bear the costs of sale, but I express no firm view on the matter. The alternative may be for Mr Brown to bear one-fifth of the cost.[50] The application is to be re-listed in the Companies List on 1 August 2014 at 11.45 am. If at that time proper progress has not been made, Mr Brown may renew his request for an order for liquidation.[51] In the meantime costs on the application are reserved. Again without expressing any definitive view on quantum, Mr Brown can anticipate that his reasonable costs of this application will be met. The need for an application hascome about because of the directors' default and the default of the defendantcompany in meeting his legitimate request for payment of his share of the loan.[52] If the parties cannot agree on quantum, then I will hear further from them on 1 August 2014.[53] There is a remaining issue as to confidentiality, which I now turn to.Confidentiality[54] The defendant company seeks an order under s 69 of the Evidence Act 2006 to prevent disclosure of some parts of the evidence which it argues are confidential. The evidence it seeks to keep confidential comprises the loan agreement between the estate and the defendant, minutes, letters, financial statements, and the terms of the deed. These are located in the annexures to the following affidavits:(a) Mr Brown's affidavit, dated 5 November 2013; and(b) The joint affidavit of Messrs Roger, Christopher and Murray Brown, dated 21 November 2013.[55] I accept that this is a case where disclosure of these documents may harm the interests of the two companies. They are not insolvent and there is no immediate public interest in disclosure of their financial affairs in the public arena.[56] Accordingly I order that there is to be no disclosure to non-parties of the above affidavits without the leave of a Judge._____________________Associate Judge SargissonSCHEDULE174 Prejudiced shareholders(1) A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the Court for an order under this section.(2) If, on an application under this section, the Court considers that it is just and equitable to do so, it may make such order as it thinks fit including, without limiting the generality of this subsection, an order—(a) Requiring the company or any other person to acquire the shareholder's shares; or(b) Requiring the company or any other person to pay compensation to a person; or(c) Regulating the future conduct of the company's affairs; or(d) Altering or adding to the company's constitution; or(e) Appointing a receiver of the company; or(f) Directing the rectification of the records of the company; or(g) Putting the company into liquidation; or(h) Setting aside action taken by the company or the board in breach of this Act or the constitution of the company.(3) No order may be made against the company or any other person under subsection (4) of this section unless the company or that person is a party to the proceedings in which the application is made.241 Commencement of liquidation(1) A company may be put into liquidation by the appointment as liquidator of a named person or of an Official Assignee for a named district.(2) A liquidator may be appointed by—(a) special resolution of those shareholders entitled to vote and voting on thequestion; or(b) the board of the company on the occurrence of an event specified in theconstitution; or(c) the court, on the application of—(i) the company; or(ii) a director; or(iii) a shareholder or other entitled person; or(iv) a creditor (including any contingent or prospective creditor); or(v) if the company is in administration, the administrator; or(va) if the company is a financial markets participant, the FMA; or(vi) the Registrar; or(vii) if the company is a licensed insurer, the Reserve Bank of NewZealand; or(viii) in the case of a company that has been removed from the NewZealand register, the Registrar or a person who, immediatelybefore the company was removed from the New Zealand register,was a person described in subparagraph (ii), (iii), (iv), or (vii); or(d) a resolution of the creditors passed at the watershed meeting held under section 239AT.(2A) However, the court must not appoint a liquidator under subsection (2)(c)(viii) unlessthe company is restored to the New Zealand register under section 328 or 329.(3) An Official Assignee may be appointed liquidator of a company only—(a) if the special resolution passed in accordance with paragraph (a) ofsubsection (2) is passed by reason of the Official Assignee exercising votingrights attaching to shares in the company of—(i) a person who has been adjudged bankrupt; or(ii) another company of which the Official Assignee is liquidator; or(b) by the court.(4) The court may appoint a liquidator if it is satisfied that—(a) the company is unable to pay its debts; or(b) the company or the board has persistently or seriously failed to comply with thisAct; or(c) the company does not comply with section 10; or(d) it is just and equitable that the company be put into liquidation.(5) The liquidation of a company commences on the date on which, and at the time atwhich, the liquidator is appointed.