TUBBS AND GOWER (AS RECEIVERS OF WAIMATE TIMBER PROCESSING LIMITED) V RUBY 2005 LIMITED HC TIM CIV-2009-476-000615

TUBBS AND GOWER (AS RECEIVERS OF WAIMATE TIMBER PROCESSING LIMITED) V RUBY 2005 LIMITED HC TIM CIV-2009-476-000615

On the proved facts the timber involved in the October 2009 transactions was owned by Ruby (earlier converted stock had been replenished by early September 2009) and the sales were in the ordinary course of Waimate's business; accordingly s 53 PPSA applied and the proceeds were not subject to ANZ's security...

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Citation
openlaw-5d07be3e_d6ab_47c8_a7e9_0934429bfc52.pdf
Parties
First Plaintiff (receivers): Stephen John Tubbs and Colin Anthony Lathan Gower (as receivers of Waimate Timber Processing Limited); Second Plaintiff: ANZ National Bank Limited; Defendant: Ruby 2005 Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 July 2011
Procedural Posture
Civil Receivership and Commercial / Judgment (substantive Hearing, Reserved Decision Delivered)
Outcome
Judgment for the defendant; plaintiffs' claim dismissed
Legal Topics
Section 53 PPSA Buyer in Ordinary Course, Section 25 PPSA Good Faith, Conversion of Property, Constructive Trust, Fiduciary Duty, Set Off, Receivership
Personal Property Securities Insolvency Company Law Trusts Commercial Law Section 53 PPSA Buyer in Ordinary Course Section 25 PPSA Good Faith Conversion of Property +4 more

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Parties

Stephen John Tubbs and Colin Anthony Lathan Gower (as receivers of Waimate Timber Processing Limited)

First Plaintiff (receivers)

ANZ National Bank Limited

Second Plaintiff

Ruby 2005 Limited

Defendant

Procedural Posture

Civil Receivership and Commercial / Judgment (substantive Hearing, Reserved Decision Delivered)

Legal Issues

  1. 1 Whether timber involved in October 2009 transactions was 'sold' by Waimate to Ruby for the purposes of s 53 PPSA
  2. 2 If sold, whether those sales were 'in the ordinary course of business' of Waimate
  3. 3 Whether proceeds are subject to ANZ's security interest or protected by s 53

Ratio Decidendi

On the proved facts the timber involved in the October 2009 transactions was owned by Ruby (earlier converted stock had been replenished by early September 2009) and the sales were in the ordinary course of Waimate's business; accordingly s 53 PPSA applied and the proceeds were not subject to ANZ's security interest; plaintiffs' claims, including constructive trust, fail.

Court Disposition

Judgment for the defendant; plaintiffs' claim dismissed

Orders

  • Proceeds of the October 2009 sales and interest held in the separate account to be released to the defendant
  • Costs reserved; initial view defendant entitled to costs on a 2B basis; parties to file submissions on costs: 21 working days for the first submissions, 10 working days for reply, submissions limited to two pages