New Zealand Case Law: Decisions & Judgments

Topic

Liquidator powers

Legal area

Court

24 Feb 2023

DALTON v OSMOND [2023] NZHC 282

Citation

[2023] NZHC 282
Court

High Court

The respondent falls within ss 261, 266 and 274 either as a de facto director or as a person with knowledge of Delta's affairs given his role in the corporate chain, filings and dealings; accordingly the court ordered production of all books, records and other property relating to Delta in his possession or control, an affidavit of diligent search with a schedule, delivery within five working days before examination, and attendance to be examined on oath; costs to follow on a 2B basis plus disbursements (subject to memoranda if not agreed).
17 Aug 2022

SCUTTER v ARCHITECTURAL WINDOW SOLUTIONS LIMITED (IN LIQUIDATION) [2022] NZHC 2046

Citation

[2022] NZHC 2046
Court

High Court

Given the liquidator's familiarity with the company and unanimous support of retention creditors, the Court exercised its inherent power to appoint the liquidator as receiver and manager of the Retention Fund; the Fund is held on trust under ss 18A–18I of the Construction Contracts Act 2002; the appointed receiver may determine and pay valid claims, distribute funds pro rata with interest deferred until non-interest claims are paid, make any surplus available to company creditors under the Companies Act, and deduct reasonable management and application costs from the Retention Fund subject to…
3 Jun 2022

EVAN KERRY STEWART v ELIZABETH HELEN KEENE AND LUKE NORMAN AS LIQUIDATORS OF EVERSONS INTERNATIONAL LIMITED (IN LIQUIDATION) [2022] NZSC 70

Citation

[2022] NZSC 70
Court

Supreme Court

Leave to appeal was dismissed because the question raised was essentially factual and discretionary, the Courts below rightly concluded s 266 applies even where collateral proceedings exist provided the power is not used oppressively, there was no basis to read down s 266 under s 27 NZBORA, and the exercise of discretion to order examination was correct given the applicant's non-cooperation.
18 Feb 2022

STEWART v FATUPAITO [2022] NZCA 21

Citation

[2022] NZCA 21
Court

Court of Appeal

The Companies Act s266 grants the Court jurisdiction to order examination and production despite parallel proceedings; where the examinee (here the sole director) has not cooperated and records are inadequate, it is a proper exercise of discretion to order attendance and production to enable tracing and recovery of company assets.
1 Nov 2021

MCVEIGH v DECMIL & ORS [2021] NZHC 2929

Citation

[2021] NZHC 2929
Court

High Court

The court concluded the consent order created an express trust for retention creditors and that, on the evidence, the applicant's earlier conduct (treating the funds as company property, depletion of the fund, incurring fees without clear court authorisation) together with undisclosed commercial arrangements with DAP gave rise to a real and reasonable appearance of conflict and potential lack of independence; accordingly the applicant was disqualified from appointment as receiver and the court appointed independent receivers (Gareth Hoole and Clive Bush) with powers under the Receiverships Ac…
6 Jul 2021

FATUPAITO and KEENE v STEWART [2021] NZHC 1679

Citation

[2021] NZHC 1679
Court

High Court

The Court has jurisdiction under s 266 to order the respondent (a sole director/shareholder) to attend for examination and produce company books concerning matters relating to the business, accounts and affairs of the company even though proceedings against him are extant; the liquidators demonstrated the examination and production are reasonably necessary to fulfil their statutory duties given the respondent's non-cooperation; the examination is not oppressive and any risk to limitation defences can be mitigated by an undertaking limiting use of the examination record as an acknowledgment un…
14 Feb 2020

GRANT v JESSE & ASSOCIATES BARRISTERS & SOLICITORS [2020] NZHC 168

Citation

[2020] NZHC 168
Court

High Court

The Court ordered production under s 266(2)(b) because respondents had failed to produce bank statements and other documents that are in their possession or control and that are plainly necessary to the liquidator's investigation; the examination under s 266(2)(a) was adjourned to allow voluntary interview and to avoid unnecessary use of court time, with directions and deadlines to progress the matter.
8 Mar 2019

RE FORESTLANDS [2019] NZHC 393

Citation

[2019] NZHC 393
Court

High Court

The Court granted the application: liquidators may pay interim dividends to shareholders who have proved their shareholdings and provided bank details, must retain an amount equivalent to unpaid dividends for other shareholders in a separate account, may add interest from that account to the general pool for costs and final distribution, and the application may be determined without notice given the circumstances.
29 May 2018

COMMISSIONER OF INLAND REVENUE v LIVINGSPACE PROPERTIES LIMITED (in liq) [2018] NZHC 1232

Citation

[2018] NZHC 1232
Court

High Court

The Court ordered production of the accounting records and related documents because they are relevant and reasonably necessary for the liquidator to ascertain and locate company property and investigate accounting while RFD was in possession; Ms Buxton, as RFD's director, is the appropriate person to produce them, and objections of burden, prior production or lack of knowledge were insufficient to refuse production; the request for examination was adjourned pending review of produced documents.
6 Oct 2017

PRICEWATERHOUSECOOPERS v WALKER AND ORS [2017] NZSC 151

Citation

[2017] NZSC 151
Court

Supreme Court

Having regard to the Funding Agreement together with the Allied and Dominion security assignments, the Court found an arguable risk that the arrangement amounted to an assignment of a bare cause of action; however SPF's undertakings in this Court not to rely on cl 6.3 of the Allied GSA and to make agreed distributions to the liquidator/unsecured creditors removed the objection of an impermissible bare assignment, so the appeal was dismissed on the basis the arrangements as amended by those undertakings did not amount to an abuse of process.