THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED V BAIRDS ROAD PHARMACY LIMITED HC AK CIV 2009-404-000971

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED V BAIRDS ROAD PHARMACY LIMITED HC AK CIV 2009-404-000971 15 May 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-000971UNDER the Companies Act 1993 BETWEEN THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Plaintiff AND BAIRDS ROAD PHARMACY LIMITED DefendantCIV 2009-404-001647UNDER the Companies Act 1993 BETWEEN SITA DEVELOPMENTS LIMITED (IN LIQUIDATION) Plaintiff AND BAIRDS ROAD PHARMACY LIMITED Defendant Hearing: 15 May 2009 Counsel: NFD Moffatt for plaintiff Civ 20090-404-000971 NK King for Hanover Finance Limited, a creditor BL Martelli for Veda Capital Limited, a creditor SO McAnally for Sita Developments Limited (in liquidation), a creditor CIV 2009-404-001647 SO McAnally for plaintiff BL Martelli for Veda Capital Limited, a creditor Judgment: 15 May 2009 at 4:58pm(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on applications to appoint liquidators]Solicitors: Bell Gully, PO Box 4199, Auckland for plaintiff (Civ 2009-404-971) Buddle Findlay, PO Box 1433, Auckland for Hanover Finance Ltd Simpson Grierson, Private Bag 92 518, Auckland for Veda Capital Ltd Keegan Alexander, PO Box 999, Auckland for Sita Developments Ltd (in liquidation) (Civ 2009-404-1647) Keegan Alexander, PO Box 999 for plaintiff Simpson Grierson, Private Bag 92 518, Auckland for Veda Capital Ltd[1] Applications are made by New Zealand Guardian Trust Limited and Veda Capital Limited for orders placing Bairds Road Pharmacy Limited into liquidation and appointing liquidators. [2] The New Zealand Guardian Trust Limited proceeding was first called on 8 April 2009 when it was adjourned for proof of service and advertising to today. Evidence of these matters is now before me on that file. The application of Sita Developments Limited (in liquidation) was called before Associate Judge Sargisson on 8 May 2009 and was adjourned, at that time, to today's date because there were competing requests in relation to who the liquidators should be of Bairds Road Pharmacy Limited. [3] Bairds Road Pharmacy Limed is part of a group of a number of companies which have been set up and run by Dhanshuk Amarsee. This morning I made orders appointing Mr Hoole and Mr Pitfield liquidators in respect of five of the companies in Mr Amarsee's group. [4] All parties present agree that an order placing Bairds Road Pharmacy Limited into liquidation should be made today. Counsel told me from the Bar that this company is still trading, which again emphasises the need to act without delay. [5] The specific problem that arises is that one of the current liquidators of Sita Developments Limited (in liquidation), the plaintiff in proceeding Civ 2009-404- 1647, wishes to be appointed a liquidator of Bairds Road Pharmacy Limited. He is Mr PG Sargison. It is proposed that he and his associate, Mr GS Rea be appointed. [6] Other parties, as I have mentioned, seek the appointment of Mr Hoole and Mr Pitfield. [7] I say without hesitation that those who have been proposed as liquidators are of good standing in that role and no particular personal criticism is levelled by any of the parties before me against either of them.[8] What is advanced in favour of the appointment of Messrs Hoole and Pitfield is that there is no perception, if they are appointed, of any lack of independence from a position of a creditor and the debtor company. There might be such a perception if Mr Sargison or Mr Rea are appointed because they would have to rule on a proof of debt which is prepared by Mr Sargison in his capacity as liquidator for a creditor company in the liquidation of the defendant company. [9] The Companies Act 1993 does not provide a set of criteria which must be applied in determining who should be appointed as a liquidator. The Court has a free and unfettered discretion in that matter. The authorities, however, have recognised that a matter of prime consideration is that the liquidator is independent and must be seen to be independent. The Court will also wish to see that the interests of the persons concerned in the winding up are best served by the appointment. The Court will also have regard to wider public interest. The Court will wish to see that the person who is appointed is not disqualified from being a liquidator having regard to s 280 of the Companies Act 1993. The person to be appointed must consent in terms of s 282 and must also certify that he or she is not disqualified under subs(1) of s 280 from accepting appointment. The proposition which I have outlined I have extracted from the following authorities:re Allebart Pty Ltd and the Companies Act [1971] 1 NSWLR 24Jacobsen Creative Surfaces Ltd v Smith City Ltd [1994] MCLR 28Gallagher & Ors v 451237 Ltd HC WN CIV 2007-485-1985 2 November 2007re Trafalgar Supply Company Ltd (in liquidation) [1991] MCLR 293, re Chateau Hotels Ltd [1997] 1 NZLR 381. [10] I do no overlook the fact that creditors may, at a later time n the matter of Bairds Road Pharmacy Limited, wish to have liquidators other than those appointed by the Court appointed because of the particular confidence that the creditors have in a line of inquiry that they may wish to follow. That position, however, can be dealt with in the course of the liquidation and, indeed would occur at the first meeting of creditors when the resolution to endorse the liquidators can be advanced and voted upon. That, then, is the safeguard for the concern which Mr McAnally advanced.[11] However, I come back to the position that the liquidators must be independent and must be seen to be independent. There is, here, the possibility, viewing the matter from the outside, that the position of Mr Rea and Mr Sargison may not be seen to be independent because they are the liquidators of the plaintiff. [12] No such problem exists with Messrs Hoole and Pitfield. I therefore come to the conclusion that they are the appropriate liquidators for the Court to appoint at this time. I intend to make their appointment in respect of the New Zealand Guardian Trust file where their appropriate consent has been lodged. [13] Accordingly, I make the following orders: a) Bairds Road Pharmacy Limited is placed into liquidation; b) Gareth Russell Hoole and Kevin David Pitfield are appointed the liquidators; c) In light of the orders made, the Sita Developments Limited (in liquidation) proceeding is dismissed. An order for costs in favour of the plaintiff and supporting creditor in that proceeding on a 2B basis plus disbursements as fixed by the Registrar is made; d) Orders for costs for the plaintiff in the New Zealand Guardian Trust Limited proceeding and the supporting creditors are made on a 2B basis, plus disbursements as fixed by the Registrar.These orders are made at 4.58pm on 15 May 2009._____________________ JA Faire Associate Judge