100 INVESTMENTS LTD & ORS v REGISTRAR OF COMPANIES [2020] NZHC 880

100 INVESTMENTS LTD & ORS v REGISTRAR OF COMPANIES [2020] NZHC 880 [1 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-001664[2020] NZHC 880UNDER the Companies Act 1993IN THE MATTER OF an application to restore SPF NO 10LIMITED to the RegisterBETWEEN 100 INVESTMENTS LIMITEDFirst ApplicantFTG SECURITIES LIMITEDSecond ApplicantRFD FINANCE LIMITEDThird ApplicantTOMANOVICH HOLDINGS LIMITEDFourth ApplicantAND REGISTRAR OF COMPANIESRespondentHearing: 18 March 2020Appearances: A Barker QC for ApplicantsNo appearance for Respondent (abiding decision of the Court)D Bigio QC and N Firth for LPF, PVL Group Ltd in oppositionJudgment: 1 May 2020JUDGMENT OF ASSOCIATE JUDGE P J ANDREWThis judgment was delivered by Associate Judge Andrewon 1 May 2020 at 3.30 pmpursuant to r 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Introduction[1] The applicants are assignees of top-ranking securities in subsidiaries ofProperty Ventures Ltd (PVL). PVL and its subsidiaries (the PVL group) are now inliquidation. They were originally involved in individual property developments andinvestments.[2] The liquidators of the PVL group brought proceedings against various parties,including former directors of PVL and PricewaterhouseCoopers, in relation to allegedbreaches of duty said to have contributed to the PVL group's collapse in 2010 (thePVL proceedings).[3] To fund the PVL proceedings the liquidators entered into a litigation fundingagreement (the funding agreement) with SPF No 10 Ltd (SPF). SPF is the subject ofthe current application. It was a special-purpose vehicle incorporated for the PVLproceeding and a wholly-owned subsidiary of LPF Group Ltd (LPF). SPF has beenremoved from the Register of Companies (the Register).[4] PVL's liquidators subsequently reached confidential settlements with each ofthe defendants in the PVL proceedings, who agreed to pay certain amounts to theliquidators (the PVL settlement). The PVL proceedings were then discontinued.[5] The applicants have filed related proceedings (100 Investments Ltd & Ors vWalker & Ors CIV-2019-404-1160) in this Court against the liquidator of PVL and itssubsidiaries; and against SPF and LPF (the primary claim proceedings). The substanceof the primary claim proceedings is that some of the proceeds from the PVL settlementmust have belonged to PVL's subsidiaries and should have been applied to theirbenefit. If that had been done, the applicants say that they would have received partof the settlement proceeds through the securities that they held.[6] In order to advance the primary claim proceedings, the applicants in theirpresent application before me seek orders pursuant to s 329 of the Companies Act 1993(the 1993 Act) to restore SPF to the Register, and for leave to continue proceedingsagainst SPF in the primary claim proceedings, pursuant to s 248(1)(c) of the 1993 Act(the applications).[7] LPF opposes the applications and the Registrar of Companies abides theCourt's decision. LPF contends there is no utility in restoring SPF to the Register –the sole reason for the applications is to pursue a claim against SPF in the primaryclaim proceedings, which LPF says is factually and legally unsustainable.[8] The applicants say the legal basis for their claim against SPF is reasonablysimple. The funds received in the PVL settlement were owned in part by theapplicants. This is either because they were after-acquired property of the subsidiariesunder ss 43 and 44 of the Personal Property Securities Act 1999 (PPSA), or they werethe proceeds of collateral under s 45 of that Act.Factual background[9] The applicants describe the funding for the PVL group as follows. Loans weremade by third party funders to the individual subsidiary and secured by a first rankingcharge over the assets of that subsidiary. There were then cross-guarantees given byother members of the group, including PVL. PVL was not a substantial borrower inits own right. Its liability was only as a result of a claim by a creditor or a subsidiarycompany pursuant to a guarantee that PVL had granted.[10] In terms of the guarantees that PVL provided, it granted Hanover Finance Ltd(Hanover) a GSA over its assets to support its guarantee of loans to one of itssubsidiaries (the Allied GSA).1 The underlying debt for that advance and thesupporting securities were assigned to Allied Farmers Investment Ltd and then SPF(the Allied Finance loan).[11] The PVL group was placed into liquidation in the period between 2010 and2012. Mr Walker and Mr Scutter were appointed the joint liquidators of PVL.Mr Walker was the sole liquidator of the subsidiaries.[12] Following their appointment, the liquidators investigated the potential forclaims on behalf of unsecured creditors of the PVL group. On 31 October 2012, tofacilitate those claims, the liquidators entered into the funding agreement.1 The detail of the Allied GSA was summarised by the Supreme Court in PricewaterhouseCoopersv Walker [2018] 1 NZLR 735 at [34]-[36].[13] The Supreme Court considered the funding agreement and whether itamounted to champerty and/or abuse of process in its 2018 judgmentPricewaterhouseCoopers v Walker.2 The relevant parts of the Supreme Court'sdescription of the funding agreement are as follows:3(a) SPF would obtain a first ranking security interest over the assets ofPVL, and in particular, would acquire the Allied Finance loan and theAllied GSA.(b) SPF would fund the litigation through a loan to PVL. The costs of thelitigation were referred to as the "Project Costs".(c) If any claim was successful, SPF would be repaid the Project Costs. Itwould also receive a "Services Fee" of either two times the ProjectCosts or 42.5 per cent of the remaining amount recovered (whicheverwas greater).[14] SPF subsequently obtained an assignment of the Allied Finance loan withsecurities, as well as a loan from the Dominion Finance Group Ltd with securities (notthe focus of these proceedings), both of which were guaranteed by PVL. SPF thereforeheld a priority claim to any funds received by PVL.[15] Following the signing of the funding agreement, the liquidators of the PVLgroup issued the PVL proceedings. This included not only claims against the formerdirectors and the auditor of PVL (namely, PricewaterhouseCoopers), but also thevaluers of various properties owned by PVL's subsidiaries. The claims were broughtthrough a combination of various plaintiffs. All of the claims sought recovery basedon the combined liability of the subsidiaries to their third-party funders (some $302m),and some of the claims were brought directly in the name of the subsidiaries (ratherthan that of PVL).[16] The PVL proceedings were settled in the period between 2015 and 2017.2 Above n 1.3 At [18]–[36].[17] The applicants say that after the deduction of the liquidators' fees, all fundsappear to have been paid to SPF and/or LPF, either under the funding agreement, orthe Allied GSA. They say that no funds appear to have been paid to PVL's subsidiariesnor dealt with as part of their liquidations.[18] As assignees of top-ranking securities in seven of the subsidiaries, theapplicants say PVL's subsidiaries owed them at least 24 per cent of the total amountof the claims that were settled.[19] On 28 February 2019, SPF was placed into liquidation by special resolution ofits sole shareholder, LPF.[20] On 5 March 2019, SPF's liquidator issued his first and final report. On thebasis of advice from management, he concluded that the company did not have anyassets or liabilities and was therefore solvent. He did not take any steps to investigatethat claim.[21] SPF was removed from the Register on 4 April 2019.[22] The primary claim proceedings were filed on 14 June 2019.4 At that time, theapplicants say they were not aware that SPF had been removed from the Register.They filed this application once they became aware of that fact.[23] LPF and the other defendants then applied to strike out the primary claimproceedings. Shortly before the hearing of the strike-out application, the plaintiffs (theapplicants in these proceedings) agreed to re-plead on the basis of three draft causesof action provided to LPF and the other defendants. These draft causes of action areannexed to the applicants' submissions in this case.[24] LPF says it withdrew its strike-out application not because it conceded that theclaims had merit, but only because proposed amendments would result in the claimcomplying with the basic rules of pleading. LPF remains of the view that those claimscannot succeed against it or SPF.4 Described at [5] above.[25] The applicants here have not yet filed an amended statement of claim.However, in the draft amended document before me, attached to their submissions, theapplicants make the following claims:(a) In paying away the settlement proceeds to SPF and LPF, the liquidators,SPF and LPF:(i) Have converted the funds (on the authority of Dunphy vSleepyhead Manufacturing Co Ltd);5(ii) are liable for money had and received (on the authority ofMcKay v Johnson);6 and(iii) hold the funds subject to the applicants' security interests (inaccordance with the provisions of the PPSA).[26] The applicants say that SPF is a critical party in the primary claim proceedings.It was SPF which was party to the funding agreement and took the assignment of theAllied GSA. It was also a party to the PVL settlement and the applicants thereby claimthat SPF's role and its potential liability is central to those proceedings.[27] LPF was served with a copy of the application to restore SPF to the Register,as it was SPF's sole shareholder at the time of removal. LPF filed a notice ofopposition on 31 October 2019.Relevant legal principles[28] Section 329 of the 1993 Act sets out the requirements for an order restoring acompany to the Register. Section 329(2) describes those persons who have standingto make an application. Those persons include a "creditor" of the company.[29] A creditor is defined in s 240(1) of the Act as a person who, in the liquidation,would have a claim under s 303. The admissible claims under s 303 include:5 Dunphy v Sleepyhead Manufacturing Co Ltd [2007] 3 NZLR 602 at [50].6 McKay v Johnson [2018] NZAR 543 at [45].Subject to subsection (2) of this section, a debt or liability, present or future,certain or contingent, whether it is an ascertained debt or a liability fordamages, may be admitted as a claim against a company in liquidation.[30] An unresolved civil claim against a company is a claim that can be admitted inliquidation.7[31] If a claimant has standing to apply for restoration under s 329, the Court stillhas a discretion. It may nonetheless refuse restoration. This has been described as anegative discretion in the sense that, unless there are some discretionary factors thatpoint against restoration, the order should be made:8Those within s 329(2)(a) and (b) are entitled to apply for a company to berestored; others need leave under (c). The grounds for a restoration order areset out in s 329(1). The just and equitable ground under s 329(1)(b) does notrequire consideration if the applicant can satisfy the Court of at least one ofthe more specific matters in s 329(1)(a). As to these more specific groundsunder (a), even if the Court is relevantly satisfied, it has a discretion whetherto restore the company. The section is silent on matters to be considered inthat residual discretion, but presumably they are negative factors – mattersthat count against restoration, even if the grounds in (a) have been made out.In other words, if one of the grounds in (a) is proved, restoration shouldfollow, unless some discretionary factor against restoration applies. I donot understand the section to require a residual discretion hurdle to besurmounted before restoration, in the absence of any negative factors. On theother hand, the more general "just and equitable" basis in (b), allowsdiscretionary factors going both ways to come into consideration.(emphasis added).[32] In determining the merits or otherwise of the potential claim that would bemade against (or by) a company, the courts do not generally require a high standard ofproof. The claim need only be one that appears to be genuine:9An application to restore a company to the Register is not the occasionfor a thorough examination of the merits of the applicant's claim. Theprocess is a relatively summary one. The cases show that the merits ofthe claims are rarely subject to in-depth scrutiny. In some cases the courtscheck that claims will not be statute-barred. That aside, as long as theapplicant appears to have a genuine case (as opposed to one that is frivolous,vexatious or without merit), which it is pursuing in good faith, the courts havenot required an applicant to prove more.(emphasis added).7 See, for example, Re Saxpacks Foods Limited [1994] 1 NZLR 605; Re Salamanca InvestmentsLtd: Wellington City Council v Registrar of Companies [2015] NZHC 572, [2015] 3 NZLR 411.8 Re Salamanca Investments Ltd, above, at [97].9 At [104].[33] Cases where a court refuses to restore a company to the Register are unusual.10The contest on such an application is between principles of access to justice and rulesof pure administrative convenience.11 In Re Pranfield Holdings Ltd, the Court statedthe approach in the following way:12[T]he principle must be that the somewhat peremptory power of the Registrarto remove deadwood from the corporate scene, will not prevail against therights of those so removed, or of others with whom they have dealt, to reinstatethe company to pursue remedies provided by substantive law, unless it is plainthat the proceeding, if unsuccessful, will still be nugatory. This principle putsgrand notions of access to law ahead of mere rules for administrative ease.Analysis and decision[34] LPF's principal ground of opposition is that the proposed claims against SPFof conversion; money had and received; and the claims under the PPSA; arefundamentally unsustainable and no real or legitimate purpose would be served bymaking an order for restoration in these circumstances.[35] Mr Bigio QC, for LPF, accepts the broad definition of creditor in s 240(1) ofthe 1993 Act. However, he challenged Mr Barker's contention that an applicationunder s 329 is generally only refused where there is no real or legitimate purpose tobe served by the making of the order. Mr Bigio contended that the threshold is not solow.[36] I accept there is merit to Mr Barker's submission that I should approach theapplications before me in a sequential order. Logically, the prior question is whetherthe company should be restored to the Register under s 329. The question as to whetherleave should be granted under s 248(1)(c) then follows. However, where (as is thecase here) the sole and undisputed purpose of the s 329 application is to pursueproceedings against SPF, then in my view it is relevant to address whether theproceedings are capable of success, as would be the case for leave under s 248(1)(c).10 John Hammonds & Co Ltd v Registrar of Companies [1989] 3 NZLR 690 at [57].11 Re Pranfield Holdings Ltd [2001] 9 NZCLC 262,577 at [20].12 At [20].[37] I also reiterate that in relation to both ss 329 and 248(1)(c), in determining themerits or otherwise of the potential claims, the requisite standard of proof is low.13[38] Therefore, the critical issue I must determine is whether the applications, ascontended, are fundamentally unsustainable. If so, I accept that I should decline tomake an order under s 329.[39] I accept Mr Bigio's submission that the withdrawal by LPF of its strike-outapplication cannot properly be interpreted as an acknowledgement that there is somemerit to the claims the applicants wish to bring against SPF (which are essentially thesame as the causes of action against PVL). As I have stated, the plaintiffs in theprimary proceedings are yet to file an amended statement of claim containing theproposed new causes of action, and the reason LPF withdrew its strike out applicationwas because the proposed amendments the plaintiffs intended to make would complywith the basic rules of pleading. The principal ground for the strike-out applicationwas that the claim did not comply with rr 5.26 and 5.27 of the High Court Rules 2016,in that it failed to adequately plead any specific cause of action against LPF and specifythe relief or remedy sought on each apparent cause of action.[40] I turn now to address the merits of the three causes of action proposed.Conversion[41] As noted above, the applicants rely upon the Court of Appeal's decision inDunphy v Sleepyhead Manufacturing Co Ltd.14[42] The issue in Dunphy was whether a security agreement with a debtor could beenforced against the liquidators of the debtor – and whether those liquidators couldthen be liable for conversion where they had refused to hand over to the respondent(Sleepyhead) the goods subject to its security agreement and to account to Sleepyheadfor the proceeds of sale.13 Re Salamanca Investments Ltd, above n 7; and in relation to s 248, see Fisher v Isbey (1999) 13PRNZ 182 at [23].14 Above n 5.[43] That Court held that liquidators are agents of companies, not merely thirdparties. This meant that Sleepyhead's security interest was enforceable against theliquidators. It was further held that the liquidators were wrong in refusing to recogniseSleepyhead's security interest and in the absence of any superior interest, Sleepyheadwould have been entitled to possession of the goods subject to its security interestunder s 248(2) of the 1993 Act (and were in any case entitled to surplus from theliquidators under s 117 of the PPSA). The Court also noted that the liquidators wouldhave been liable for conversion had it not been for the fact that they were also actingfor the secured creditor (BNZ) which had a superior interest to Sleepyhead.[44] I agree with Mr Bigio's submission that Dunphy does not apply to cases whichinvolve genuine third parties, and that in this case it is difficult to see how there is anarguable case for conversion against either the liquidators, LPF, or SPF. In thesecircumstances, the liquidators appear to have discharged their duties to a superiorsecurity interest holder.[45] Mr Barker, however, submitted that the liquidators are liable in conversion ontwo bases – the first is that the liquidators have used a secured asset (being the claimthat the subsidiaries had against the third parties, which were subject to the applicants'securities); and the second is that they used the proceeds of the realisation of that asset,which were also subject to the applicants' security interest (as after-acquired property).Mr Barker contended that Dunphy confirms that the liquidators can be liable inconversion to the whole of the security interest in respect of both assets.[46] However, that submission does not address the question of a superior securityinterest, nor does it address the question of the liability of LPF or SPF as third parties.[47] Mr Barker further submitted that LPF and SPF mischaracterised themselves asthird parties to the wrongs. It is argued that liability in conversion (and for money hadand received) is not restricted to the person who first disposes of or delivers anotherperson's property to a person not entitled to it. A claim for conversion can also arise,it is contended, against a party who receives property belonging to another person.15This principle is explained by the authors of the Laws of New Zealand:16Just as it is conversion wrongfully to dispose of goods, so it is conversionwhere a person wrongfully receives them, if that reception amounts to anassumption of wrongful dominion and an assertion of a right inconsistent withthat of the true owner; thus a person receiving goods may be guilty ofconversion even where that person is innocent of the wrongful nature of thetransaction and gives value for the goods. Seemingly it is not necessary thatthere is first a demand and refusal.Money had and received[48] Mr Barker contended that an action for money had and received could alsoarise against a party who received funds belonging to the plaintiff from a third party,subject to the ordinary defences that apply (such as change of position). He reliesupon the seminal speech of the House of Lords in Lipkin Gorman v Karpnel Ltd.17[49] In McKay v Johnson, Muir J held that a liquidator who does not account to asecured creditor for a secured asset is liable to the secured creditor for conversion,though a failure to account in respect of money is usually remedied by an action inmoney had and received.18[50] The Court further held that an action for money had and received does notdepend on any proof of wrongdoing or impropriety on behalf of the recipient, althoughthere must be some element of unjustness in the defendant retaining the moniesreceived.19[51] I accept Mr Bigio's submission that in McKay v Johnson the Court was dealingwith a claim by receivers of companies against the liquidators and that, strictlyspeaking, this was not a claim against a third party. However, it is clear from theauthorities, as Mr Barker submitted, that liability for money had and received is notrestricted to the person who first disposes of or delivers a person's property to anotherperson not entitled to it. Furthermore, and in relation to the element of unjustness, the15 Mr Barker relies on the case of Nash v Barnes [1922] NZLR 303 (SC).16 Wrongful Interference with Goods: Conversion and Detinue at [234.].17 Lipkin Gorman v Karpnel Ltd [1991] AC 548 (HL).18 McKay v Johnson [2018] NZAR 543 at [45], [83]-[87].19 At [48].question of whether SPF had a right to assert priority over the proceeds of the PVLsettlement appears to be a live issue. It seems PVL's subsidiaries did not sign thefunding agreement.[52] LPF, however, submitted that SPF would have a complete defence to any claimbecause it had a priority to the funds received in settlement under the fundingagreement, and by reference to the "salvage principle". LPF relies upon the FederalCourt of Australia's decision, IMF (Australia) Ltd v Meadow Springs Fairway ResortLtd (in liq).20 In that case the Federal Court found that the litigation funders'remuneration was an expense incurred by a liquidator in the course of realising asecured asset. It therefore came within the salvage principle and so was an expense tobe borne by the fund, achieved by realisation of secured property before any claim bysecured creditors to the same fund.[53] While that may be so, it does not follow that upon application of such aprinciple the fees charged under the funding agreement will automatically be acceptedby a court as proper in the circumstances. In this regard, I note that the Supreme Courtin PricewaterhouseCoopers v Walker, did express doubts about the fundingarrangements at issue here.21[54] Furthermore, as Mr Barker submitted, the settlement proceeds appear to havebeen disbursed in accordance with the funding agreement as well as the Allied GSA.Any argument over the applicability or otherwise of the salvage principle could onlybe relevant to the funds disbursed under the funding agreement. The principle wouldnot apply to funds disbursed under the Allied GSA.[55] Therefore, I find I cannot conclude in this limited context that the applicants'claims are incapable of success. For the purposes of ss 329 and 248(1)(c), such claimsappear to have sufficient merit.[56] Mr Barker further argued funds disbursed under the Allied GSA werepresumed to be funds received by PVL on behalf of all its subsidiaries who made a20 IMF (Australia) Ltd v Meadow Springs Fairway Resort Ltd (in liq) [2009] FCAFC 9.21 Above n 1.claim, and that those claims had been settled. Those funds would thus need to beapportioned between the subsidiaries. I am of course in no position to assess thestrength of that claim but, again, cannot conclude at this stage that it is altogetherincapable of success.Application of ss 43 and 44 of the PPSA[57] If a security agreement expressly gives a secured party a security interest inafter-acquired property, the general position under ss 43 and 44 of the PPSA is that thesecurity interest will simply attach to new personal property as and when the debtorobtains rights in it – no specific appropriations are needed.[58] Section 16 of the PPSA defines "debtor" (most relevantly) as "a person whoowes payment or performance of an obligation secured, whether or not that personowns or has other rights in the collateral"; and "after-acquired property" as "personalproperty that is acquired by a debtor after the security agreement is made".[59] Mr Bigio submitted that SPF did not acquire the proceeds as collateral. He saysthat is a fallacy underlying all of the applicants' claims. SPF did not, Mr Bigio argued,purchase a cause of action and keep the money. There was simply an agreement forthe exploitation of the cause of action.[60] In response, Mr Barker submitted that the claim under the PPSA is a simple"proprietary-based claim". The applicants allege that part of the proceeds of the PVLsettlement were subject to their security interests; being either the proceeds of thecollateral (i.e. the chose in action that was prosecuted); or that the proceeds themselveswere directly subject to the security interest as after-acquired property.[61] Mr Barker then argued that the fund was passed to SPF, and then presumablyon to LPF. The monies held by LPF and/or SPF were, therefore, subject to theapplicants' security interest. That security interest has been registered and it mattersnot whether SPF consented to the registration. Under ss 90 and 91 of the PPSA it isnot necessary that SPF or LPF gave their consent.[62] I acknowledge the force of Mr Bigio's submissions. As I understand it, tosucceed, the applicants would have to prove they had a legitimate security interestwith SPF (whereby SPF was debtor) which explicitly covered after-acquired propertybelonging to SPF as debtor. If neither LPF or SPF are or were the debtor (PVL was)it is hard to see how ss 43 and 44 can apply. The legislation clearly states that aninterest can only attach to personal property in the possession of the debtor.[63] In assessing the three proposed causes of action, overall, it seems to me thatthe applicants' claims are weak. However, I find that I cannot safely conclude at thisstage the proposed causes of action are fundamentally unsustainable and therefore thatno real or legitimate purpose would be served by making an order for restoration unders 329. Likewise, I cannot conclude that, notwithstanding the apparent weakness oftheir claims, the applicants do not have a genuine case. The applicants are yet to obtainfull discovery of documents and the factual background is complex. This includes thedetails of the funding agreement which are not before me and have not been testedthrough evidence. The jurisprudence makes it clear that an application to restore acompany to the Register is not the occasion for a thorough examination of the meritsof a claim.[64] The funding agreement apparently was not signed by the subsidiaries and it istherefore arguable that they are not caught by it. Even if the salvage principle were toapply, it is a question of defence and the application of the principle does not meanthat there can be no challenge to the reasonableness of the fees. While Mr Bigio maybe correct that the dissenting judgment of then Elias CJ in thePricewaterhouseCoopers case (where she was dissatisfied with the fundingarrangements) did point the way for a challenge to the funding agreement, the lack ofchallenge thus far by the PVL subsidiaries is not necessarily fatal. Furthermore, I donot see how in the context of the applications before me I could conclude that the IMFv Meadow Springs case is on all fours with this one. As Mr Barker submitted, the levelof recovery needs to be determined before these sorts of questions can be properlyanswered.Conclusion[65] I find that the grounds for a restoration order under s 329 of the 1993 Act havebeen made out. The applicants have a genuine case which they are pursuing in goodfaith and no more is required.[66] I also find that the applicants have established the grounds for the granting ofleave under s 248(1)(c) of the 1993 Act so they may bring proceedings against SPFwhile it is in liquidation.[67] I also accept the submission of Mr Barker that I should cancel the liquidator'sfinal report under s 284 of the 1993 Act. I accept that this is a "necessary step inrealising the just outcome of restoring the company to the Register".22[68] The parties have been unable to agree (in the event that I make the relevantorders) as to who should now become the liquidator.[69] The applicants say that the previous liquidator, Mr Hoole, has so far failed toconfirm that he will accept re-appointment. They propose that Mr Hunt be appointed.[70] LPF opposes the appointment of Mr Hunt as liquidator. It says that by default,if SPF is restored, the presumption is that Mr Hoole should resume as its liquidator.[71] I find in the circumstances here, that neither Mr Hunt nor Mr Hoole should beappointed, to remove any perception of bias. In my view, a truly independent partyshould be appointed. In the event that the parties cannot agree on an independentperson, the Court will make its own appointment.Result[72] I grant the application under s 329 of the 1993 Act restoring SPF to theRegister.22 Registrar of Companies v Body Corporate 307730 [2013] NZCA 659 at [26].[73] I make an order cancelling the liquidator's final report under s 284 of the 1993Act.[74] The parties are to confer and propose a new and independent liquidator within14 days. In the absence of agreement, the Court will make its own decision. Myorders at [72] and [73] above will lie in court pending the appointment of a newliquidator.[75] Lastly, I grant leave for the applicants to bring a proceeding against SPF unders 248(1)(c) of the 1993 Act.[76] As to costs, I am of the preliminary view that the applicants, having succeeded,are entitled to costs on a 2B basis. If the parties cannot agree, then submissions (nomore than three pages in length) are to be filed and served within 14 days.__________________________Associate Judge P J Andrew