HENRY DAVID LEVIN AND DAVID STUART VANCE AS LIQUIDATORS OF MULTI CONSTRUCTION CONCEPTS (MCC) LIMITED (IN LIQUIDATION) V SHOT BLAST SERVICES (AUCK) LIMITED HC AK CIV 2012-404-000433

HENRY DAVID LEVIN AND DAVID STUART VANCE AS LIQUIDATORS OF MULTI CONSTRUCTION CONCEPTS (MCC) LIMITED (IN LIQUIDATION) V SHOT BLAST SERVICES (AUCK) LIMITED HC AK CIV 2012-404-000433

On the evidence the liquidators failed to prove the first payment was outside the ordinary course and Shot Blast successfully rebutted the presumption for the second and third payments; consequently the three payments in issue were made in the ordinary course of business and cannot be set aside under s292; matters...

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Citation
openlaw-51543035_dcd1_4a15_9962_7335d67a88f6.pdf
Parties
Applicant (liquidators): Henry David Levin and David Stuart Vance as liquidators of Multi Construction Concepts (MCC) Limited (in liquidation); Respondent: Shot Blast Services (Auck) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 December 2012
Procedural Posture
Companies Act S294(5) Application to Set Aside Payments (voidable Transactions) / Interim Judgment on Whether Three Payments Were in the Ordinary Course of Business; S296 Defence and Other Issues Reserved
Outcome
Liquidators' application dismissed insofar as it related to the three payments on 29 June 2007, 21 September 2007 and 8 October 2007; Shot Blast entitled to resist setting aside those payments as they were made in the ordinary course of business; other issues reserved.
Legal Topics
Voidable Transactions, Ordinary Course of Business, Preference, Companies Act S292, S296 Defence
Companies Law Insolvency Civil Procedure Voidable Transactions Ordinary Course of Business Preference Companies Act S292 S296 Defence

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Parties

Henry David Levin and David Stuart Vance as liquidators of Multi Construction Concepts (MCC) Limited (in liquidation)

Applicant (liquidators)

Shot Blast Services (Auck) Limited

Respondent

Procedural Posture

Companies Act S294(5) Application to Set Aside Payments (voidable Transactions) / Interim Judgment on Whether Three Payments Were in the Ordinary Course of Business; S296 Defence and Other Issues Reserved

Legal Issues

  1. 1 Whether three payments made on 29 June 2007, 21 September 2007 and 8 October 2007 were made in the ordinary course of business and thus not voidable under s292 of the Companies Act 1993
  2. 2 Application of the presumption in the restricted period under s292(3) and which party bears the onus
  3. 3 Whether issue estoppel arose from the earlier application to set aside default judgment

Ratio Decidendi

On the evidence the liquidators failed to prove the first payment was outside the ordinary course and Shot Blast successfully rebutted the presumption for the second and third payments; consequently the three payments in issue were made in the ordinary course of business and cannot be set aside under s292; matters relating to s296 defences and later payments were reserved.

Court Disposition

Liquidators' application dismissed insofar as it related to the three payments on 29 June 2007, 21 September 2007 and 8 October 2007; Shot Blast entitled to resist setting aside those payments as they were made in the ordinary course of business; other issues reserved.

Orders

  • No other orders at this time
  • Costs reserved on the point decided