New Zealand Case Law: Decisions & Judgments

Topic

Pooling of assets

Legal area

Court

12 May 2017

GRAHAM v ARENA CAPITAL LIMITED (IN LIQ) [2017] NZHC 973

Citation

[2017] NZHC 973
Court

High Court

Court directed that all recovered assets of Arena (after costs) form a single common pool available to both general unsecured creditors and investors, to be distributed pro rata pari passu calculated on a net contribution basis (total paid in by each investor less total paid out to that investor as at liquidation); liquidators may deduct costs of recovery and distribution from the common pool; creditors and investors must lodge claims in substantially Form 1 and the relevant Companies Act provisions and Regulations apply.
1 Aug 2016

STEEL & TUBE HOLDINGS LIMITED v LEWIS HOLDINGS LIMITED [2016] NZCA 366

Citation

[2016] NZCA 366
Court

Court of Appeal

Because STH treated Stube as a de facto part of the group and conducted its affairs in a way that made Stube a puppet (total management involvement, financial intermingling, STH's representations to the lessor and withdrawal of support causing liquidation), it was just and equitable under s271(1)(a) to order STH to pay the full amount of Lewis's claim; absence of formal causation or detrimental reliance did not preclude relief under s271/272.
27 Aug 2015

NOYCE v PARNELL PROPERTY INVESTMENTS LIMITED [2015] NZHC 2037

Citation

[2015] NZHC 2037
Court

High Court

The liquidator acted reasonably in accepting BNZ's proof of debt because contemporaneous bank records and prior summary judgment rulings supported the claim and there was no new evidence justifying rejection; the transfers were authorised; Parnell and St Stephens are related and their businesses indistinct so pooling under s271(1)(b) is just and equitable; payments by Fifer and Compark did not protect or preserve the recoverable asset for the general body of creditors and were not made for creditors' benefit so they are not entitled to priority under Schedule 7 clause 1(1)(e); the liquidator'…
25 Jun 2013

ANDREW JAMES BETHELL AND BRIAN MAYO-SMITH AND STEPHEN JOHN TUBBS v MAINZEAL PROPERTY AND CONSTRUCTION LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) [2013] NZHC 1556

Citation

[2013] NZHC 1556
Court

High Court

On the liquidators' uncontroverted affidavit evidence the companies in the Richina group traded and were managed as a single enterprise with extensive intercompany funding, undocumented journaled transfers and restructurings that reduced recoverable assets for creditors; applying the statutory factors the Court concluded it was just and equitable to (a) order the 13 companies' liquidations to be conducted as if they were one company and (b) order Richina Global Real Estate Limited to contribute $15,150,847 and $5,786,606.77 and Isola Vineyards Limited to contribute $2,478,165 to the liquidati…
5 Nov 2012

DB BREWERIES LIMITED V HYNDMAN HC CHCH CIV 2010-409-001408

Citation

openlaw-444a7371_acea_4370_95ae_835e4c057ff8.pdf
Court

High Court

The receivers did not have contractual or statutory authority to pool the assets and sell the businesses of FCS, YCB and EJS as one lot; the security documents were confined to the contracting party (FCS) and did not confer rights over other companies' assets, and the Receiverships Act requires monies and accounting to be kept separate for each property in receivership (ss21 and 22) and imposes duties on receivers (ss18 and 19), thereby precluding the pooled sale carried out without agreement, valuation allocations or Court directions; accordingly the sale as conducted was unauthorized and qu…
5 Dec 2008

JORDAN AND VANCE V FIRST CITY TRUST NO 2 LTD (IN LIQUIDATION) AND ANOR HC AK CIV 2008-404-1776

Citation

openlaw-91022d30_14a0_4c82_8800_7f3c01195eb1.pdf
Court

High Court

The Court ordered limited further particulars because they were necessary to inform opponents of the case (business activities, financial summaries, primary facts supporting allegations and precise relief sought), dismissed the application for general discovery because Part IV procedure requires specific identification of documents or classes and no specific prejudice or necessity was shown, and declined to order security for costs against the liquidators because the exceptional threshold was not met given their public function and no evidence they could not meet personal liability; leave res…
29 Jan 2007

NAYLOR V DEMIC CONSTRUCTION LIMITED (IN LIQUIDATION) AND ANOR HC PMN CIV-2006-454-949

Citation

openlaw-f25b9bf4_04f4_4afd_a865_bf79cd482f29.pdf
Court

High Court

Because the two companies had common directorship and shareholding, operated the same business from the same address, used joint invoicing and intermingled bank accounts such that creditors were confused and funds were effectively pooled making division impracticable, the Court was satisfied it was just and equitable under s271(1)(b) read with s272(2) to order the liquidations to proceed together.

New Zealand Case Law

GRAHAM v ARENA CAPITAL LIMITED (IN LIQ) [2017] NZHC 973

STEEL & TUBE HOLDINGS LIMITED v LEWIS HOLDINGS LIMITED [2016] NZCA 366

NOYCE v PARNELL PROPERTY INVESTMENTS LIMITED [2015] NZHC 2037

ANDREW JAMES BETHELL AND BRIAN MAYO-SMITH AND STEPHEN JOHN TUBBS v MAINZEAL PROPERTY AND CONSTRUCTION LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION) [2013] NZHC 1556

DB BREWERIES LIMITED V HYNDMAN HC CHCH CIV 2010-409-001408

JORDAN AND VANCE V FIRST CITY TRUST NO 2 LTD (IN LIQUIDATION) AND ANOR HC AK CIV 2008-404-1776

NAYLOR V DEMIC CONSTRUCTION LIMITED (IN LIQUIDATION) AND ANOR HC PMN CIV-2006-454-949