GALVANISING (HB) LIMITED v JOHN HOWARD ROSS FISK AND TONY WAYNE PATTISON AS LIQUIDATORS OF EAST QUIP LIMITED (IN LIQUIDATION) [2016] NZSC 49

GALVANISING (HB) LIMITED v JOHN HOWARD ROSS FISK AND TONY WAYNE PATTISON AS LIQUIDATORS OF EAST QUIP LIMITED (IN LIQUIDATION) [2016] NZSC 49

Leave to appeal was dismissed because the applicants' core argument depended on factual findings rejected by both the High Court and the Court of Appeal that the transactions were not part of a pre-planned continuing business relationship; those concurrent findings preclude the appellate argument and do not justify granting leave in the interests of justice.

Citation
[2016] NZSC 49
Parties
First Applicant: GALVANISING (HB) LIMITED; Second Applicants: STUART DAVID EASTON AND ROBERT ELVIDGE AS TRUSTEES OF THE EASTON PROPERTY TRUST; Third Applicant: HOOKED ON TRANSPORT LIMITED; Fourth Applicants: STUART DAVID EASTON AND VIVIENNE JANE EASTON; Respondents: JOHN HOWARD ROSS FISK AND TONY WAYNE PATTISON AS LIQUIDATORS OF EAST QUIP LIMITED (IN LIQUIDATION)
Court
Supreme Court
Jurisdiction
New Zealand
Judgment Date
3 May 2016
Procedural Posture
Application for Leave to Appeal / Leave Application Dismissed by Supreme Court
Outcome
application for leave to appeal dismissed
Legal Topics
Voidable Transactions, Continuing Business Relationship, S 292(4 B) Companies Act 1993, Claw Back Orders
Companies Law Insolvency Civil Procedure Voidable Transactions Continuing Business Relationship S 292(4 B) Companies Act 1993 Claw Back Orders

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Parties

GALVANISING (HB) LIMITED

First Applicant

STUART DAVID EASTON AND ROBERT ELVIDGE AS TRUSTEES OF THE EASTON PROPERTY TRUST

Second Applicants

HOOKED ON TRANSPORT LIMITED

Third Applicant

STUART DAVID EASTON AND VIVIENNE JANE EASTON

Fourth Applicants

JOHN HOWARD ROSS FISK AND TONY WAYNE PATTISON AS LIQUIDATORS OF EAST QUIP LIMITED (IN LIQUIDATION)

Respondents

Procedural Posture

Application for Leave to Appeal / Leave Application Dismissed by Supreme Court

Legal Issues

  1. 1 Whether s 292(4B) Companies Act 1993 treats tripartite arrangements involving a company, a payee and shareholder-bankers as a single continuing business relationship
  2. 2 Whether the payments and set-offs were part of a pre-planned netting arrangement such that they are not voidable transactions
  3. 3 Whether leave to appeal should be granted where the proposed argument conflicts with concurrent factual findings below

Ratio Decidendi

Leave to appeal was dismissed because the applicants' core argument depended on factual findings rejected by both the High Court and the Court of Appeal that the transactions were not part of a pre-planned continuing business relationship; those concurrent findings preclude the appellate argument and do not justify granting leave in the interests of justice.

Court Disposition

application for leave to appeal dismissed

Orders

  • Application for leave to appeal dismissed
  • Applicants must pay costs of $2,500 to the respondents