Gerah Imports Pty Ltd v The Duke Group Ltd (in Liquidation) - [2012] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GERAH IMPORTS PTY LTD v THE DUKE GROUP LTD (IN LIQUIDATION)
[2012] SASC 63
Reasons for Decision of The Honourable Justice Sulan
18 April 2012
CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - APPLICATIONS TO COURT FOR DIRECTIONS OR ADVICE
Application by liquidator for directions pursuant to s 379(3) of the Companies (South Australia) Code - originally an insolvent liquidation - intangible assets were recovered to achieve a surplus - all creditors paid in full - surplus available for distribution - liquidator previously called for proofs of debt from potential shareholder claimants who were unable to prove in the insolvent administration - extent of liquidator's duties to provide information to potential claimants and to respond to queries - form of information to be given to shareholders.
Companies (South Australia) Code s 379(3), s 387, s 438, s 438(1), s 438(2); Bankruptcy Act 1966 (Cth) s 82(2); Corporations Act 2000 (Cth) s 439A, referred to.
Sons of Gwalia Ltd (subject to Deed of Company Arrangement) v Margaretic (2007) 231 CLR 160; Re Kershaw [2005] NSWSC 313; Re ION Ltd (2010) 80 ACSR 302; [2010] FCA 1119, discussed.
Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 419; Re Sullivans Cove IXL Nominees Pty Ltd; Crawford v de Kantzow (No 2) [2011] TASSC 53; Re Allebart Pty Ltd (in liquidation) and The Companies Act [1971] 1 NSWLR 24, considered.

GERAH IMPORTS PTY LTD v THE DUKE GROUP LTD (IN LIQUIDATION)
[2012] SASC 63

SULAN J: This is an application by the liquidator of The Duke Group Limited (in liquidation) (“the Duke Group”, “the Company”) for directions pursuant to s 379(3) of the Companies (South Australia) Code (“the Code”).
At the hearing of the application, representatives appeared for the shareholders of the Company and Genoa Resources and Investment Limited (in liquidation) (“GRAIL”), a creditor making a claim for post-liquidation interest. GRAIL was granted leave by a Master of this Court on 17 November 2011 to be heard on the application without becoming a party. Further orders were made on 23 December 2011 and 27 January 2012 determining that it is appropriate for shareholders to be represented at the application.
Background
Mr John Sheahan was appointed provisional liquidator of the Duke Group on 30 May 1989 and official liquidator on 11 July 1989 by order of this Court.
At the date of liquidation, the Company had no tangible assets and debts of approximately $35 million. The liquidator successfully brought two sets of proceedings which resulted in the payment in full of the creditors’ claims which had been allowed by the liquidator. As at January 2000, after the creditors had been paid in full, there was a surplus of funds in the liquidation. There remained substantial claims by seven creditors, admitted by the liquidator, for post-liquidation interest (“the PLI Creditors”).[1] These claims, in combination, exceed the $10 million currently held by the liquidator.
[1] The liquidator admitted the post-liquidation interest claims in the amount of approximately $56 million.
In 2004, the Full Court considered, as a case stated, the liquidator’s application for directions as to the manner with which he should deal with the claims for post-liquidation interest.[2] In accordance with the directions of the Full Court, a further dividend of $8 million was paid in respect of these claims to the PLI Creditors.
[2] Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (2004) 88 SASR 419.
Following the decision of the High Court of Australia in Sons of Gwalia Ltd (subject to Deed of Company Arrangement) v Margaretic,[3] the liquidator applied to a Master of this Court for directions concerning potential claims by the Company’s shareholders, claims which, if admissible, would take priority over the outstanding claims of the PLI Creditors.[4] There is no dispute between the parties, for the purposes of this application, that such shareholder claims as identified in Sons of Gwalia Ltd would take priority over claims by the PLI Creditors.
[3] (2007) 231 CLR 160.
[4] Re Kershaw [2005] NSWSC 313.
Pursuant to orders made on 28 November 2007, the liquidator published, and posted to certain shareholders, notices in The Australian and The Times newspaper in the United Kingdom. The liquidator received 37 proofs of debt that were adjudicated upon pursuant to s 438(2) of the Code.
In September 2010, the liquidator applied to the Court for further directions. On 12 November 2010, the Court directed that it is sufficient for the liquidator to discharge his duties to notify creditors to submit formal proofs of debt by:
·giving written notice to the last known address of the shareholders who, having regard to the legal advice received, might have claims;
·cause to be published a notice in The Australian newspaper and a daily newspaper circulating in every jurisdiction disclosed by shareholders on the share register of the Company as their address for notification.
The notice contained a final date for the lodgement of proofs of 18 May 2011, 12 weeks after the notice was published or posted. On 7 March 2011, these orders were varied by consent, such that the liquidator need only publish the notice in a daily newspaper circulating in Australia, the United Kingdom, New Zealand, Singapore and Germany.
On or about 23 February 2011, a notice in the form approved by the Court was sent to the last known addresses of 20,313 current and former shareholders of the Company. As at 27 September 2011, 1,036 proofs of debt making claim for approximately $2.2 million had been received by the liquidator.
Current application
By Interlocutory Process dated 27 September 2011, the liquidator seeks directions as follows:
1.Directions, pursuant to Section 379(3) of the Companies (South Australian) Code (“the Code”), as to the Liquidator’s obligations under the Code and the Companies Regulations, as follows:
1.1 In relation to those shareholder claimants who have responded to the Liquidator’s notice seeking proofs of debt under s438(1) of the Companies Code in terms that either:
1.1.1 do not make it clear whether or not a claim is to be pressed; and/or;
1.1.2 express a disinclination to press a claim but do so apparently on the basis of some misapprehension as to the procedure for pressing a claim and or the basis upon which it might be pressed;
a direction that it is appropriate and justified that the Liquidator communicate further with them to the extent of answering any queries, providing any information sought, informing them as to the procedure for pressing a claim, correcting or clarifying any apparent misapprehension as to the procedure for pressing a claim, and informing them of a date by which any proofs are to be lodged;
1.2     A direction as to whether or not it is appropriate and justified for the Liquidator to go further in such communications and advise the shareholders claimants in question to seek legal advice as to whether or not they may have a proper claim, or to advise such persons that the Liquidator is of the view that if they are able to establish certain matters (essentially the matters in paragraph 4 of the draft circular considered by Judge Burley) then they may, based upon his current legal advice, be candidates for admission to proof;
1.3 A direction that the plaintiff will discharge his duties and is justified in proceeding with and completing the winding up of the Duke Group Limited (In Liquidation) on the footing that any claim by a shareholder or shareholders not lodged by way of formal proof of debt under regulation 120 on or before a date to be specified (having regard to the communications contemplated at 1.1 above) has not been and will not be proved in the winding up, that the property otherwise divisible amongst any such potential claimants shall be available for application and distribution in the winding up and that no further steps need be taken either to inform shareholders of any right to prove in the winding up or to elicit any proof or claim from such shareholders;
1.4     A direction that it is sufficient for the Liquidator to discharge his duties, including under Companies Regulation 137, to publish (on a date to be specified) a Notice of Intention to Declare a Dividend, in accordance with Form 142, in the Gazette.
1.5     A direction as to whether it is appropriate and justified for the Liquidator to facilitate and fund legal representation for the potential shareholder claimants at the hearing of the application in relation to the above matters.
Legal background
The admission of proofs of debt is governed by s 438 of the Code:
SECTION 438 PROOFS OF DEBT
438(1) [Debts admissible to proof] In every winding up, subject in the case of insolvent companies to the application in accordance with the provisions of this Code of the Bankruptcy Act 1966, all debts payable on a contingency and all claims against the company (present or future, certain or contingent, ascertained or sounding only in damages) are admissible to proof against the company, a just estimate being made so far as possible of the value of such debts or claims as are subject to any contingency or sound only in damages or for some other reason do not bear a certain value.
438(2) [Application of Bankruptcy Act 1966] Subject to sections 204 and 441, in the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and debts provable and the value of annuities and future and contingent liabilities as are in force for the time being under the Bankruptcy Act 1966, in relation to the estates of bankrupt persons, and all persons who in any such case would be entitled to prove for and receive dividends out of the property of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.
[Footnote omitted.]
Section 82(2) of the Bankruptcy Act 1966 (Cth), which is imported into the Code by s 438(2), provides:
Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.
Submissions
The duty of the liquidator to remain impartial was acknowledged by all parties before me on this application. Mr Whitington QC, for the liquidator, indicated the liquidator’s neutral position on the hearing.[5]
[5] Re Sullivans Cove IXL Nominees Pty Ltd; Crawford v de Kantzow (No 2) [2011] TASSC 53.
Mr Whitington submits that the unusual feature of this now-solvent administration is the two-stage process for the admission of proofs. Mr Whitington contends that based on the decision in Re Kershaw, if an insolvent company such as the Duke Group is returned to solvency, then s 438(1) of the Code takes effect such that claims which were previously precluded by s 438(2) of the Code may now qualify for admission to proof.
In Re Kershaw, Barrett J said:[6]
The correct approach is thus to make distributions in full in respect of admitted s.438(2) claims before entertaining claims admissible under s.438(1) but not under s.438(2), and to make distributions in full in respect of the latter claims before entertaining claims for post-liquidation interest.
[6] Re Kershaw [2005] NSWSC 313 at [27].
Mr Whitington submits that the liquidator gave notice to creditors calling for proofs of debt on 25 May 1990 pursuant to s 438(2) of the Code. The liquidator called for a second round of proofs in 2007 again pursuant to s 438(2). This round, counsel submits, was interrupted by the decision in Sons of Gwalia Ltd. The third round of calling for proofs in February 2011 was the first and only round called for pursuant to s 438(1) of the Code. For this reason, Mr Whitington submits that GRAIL’s submission that the liquidator has previously advertised for proofs of debt from shareholder claimants three times is incorrect.
Mr Livesey QC, representing the shareholders, submits that the Notice sent to shareholders in February 2011 could have been confusing in the circumstances. As a result, further information ought to be provided to the class of shareholder claimants. Mr Livesey submits that the liquidator ought to be providing assistance to shareholders partly by providing information that would otherwise have been lost due to the passing of time.
Mr Livesey submits that the liquidator’s website could be used as a simple and expeditious means of publishing information for the Company’s shareholders. He further contends that this would prevent unfairness to the shareholders who have not been provided with the information to which the PLI Creditors have had access. The right to such documents, Mr Livesey submits, arises by virtue of a shareholder’s right to inspect the books of a Company pursuant to s 387 of the Code.
According to this submission, shareholders ought to be given access, via the website, to the affidavits filed by the liquidator and to the exhibits therein or, in the alternative, the exhibits upon request. Mr Livesey submits that the shareholders ought to be sent a letter similar to that referred to in Re ION Ltd[7] where a circular was sent to claimants indicating that additional information was available on ION Ltd’s website including a report prepared pursuant to s 439A of the Corporations Act 2000 (Cth). Such a circular, counsel submits, ought to contain the basis for a potential claim.
[7] (2010) 80 ACSR 302; [2010] FCA 1119.
Finally, Mr Livesey submits that any Notice of Intention to Declare a Dividend ought to be published in both The Gazette and on the liquidator’s website. He indicates that whether this is also mailed to the shareholder claimants as is required by Regulation 137 will depend on the nature and extent of the additional information provided to the shareholders.
Mr Roberts, for GRAIL, submits that the liquidator ought to be given a direction that he is justified in doing nothing further than adjudicating upon the proofs already received and publishing a Notice of Intention to Declare a Divided in The Gazette. Further, the liquidator has adequately discharged his duties in relation to identifying the creditors of the Company and has made enquiries and proceeded as he should, within the ambit of his duty of impartiality to all creditors.
In the alternative, Mr Roberts submits that the liquidator ought to be given a direction that he write to the ‘confused class’ of potential shareholder claimants on a limited basis to notify them of the date for lodging claims, such date being a final dividend cut-off date and that any further compliance with Regulation 137 be dispensed with.
The overarching submission of GRAIL is that the liquidation should be brought to an end and that a direction in terms of paragraph 1.4 of the application is appropriate to achieve this outcome.
Counsel submits that any communication with potential shareholder claimants in terms of how to formulate a claim is unnecessary and inappropriate. If the Court considers that some further communication by the liquidator with the ‘confused class’ of potential shareholder claimants is required, then the parameters of such communication, which should be in writing only, ought to be clearly specified by the Court and be limited to the following matters:
·     the number of shares held according to the Company’s share register;
·     that they may wish to seek their own advice as to whether they have a claim against the Company, and that the liquidator is unable to provide such advice; and
·     invite them to lodge a proof of debt if they consider they have such a claim and specify the date by which claims must be lodged.
It would be inappropriate and contrary to the liquidator’s duty of impartiality, Mr Roberts submits, for the liquidator to advise a potential shareholder claimant how to present its claim and that the liquidator will likely admit such a claim if lodged.[8] Mr Roberts submits that for the liquidator to start promoting how shareholders might formulate a claim is a long way towards the appearance that he is advocating such a claim be brought and so, within the context of neutrality and impartiality, his response ought to be tempered.
[8] Re Allebart Pty Ltd (in liquidation) and The Companies Act [1971] 1 NSWLR 24 at 30 (Street J).
In response to Mr Livesey’s submission that shareholders ought to be granted access to the affidavits of the liquidator on the liquidator’s website, Mr Roberts contends that this may give rise to an apprehension of bias as the liquidator therein indicates his views as to the admissibility of shareholder claims. There ought not be a statement in advance of the adjudicative process that suggests prejudgment.
Mr Roberts submits that a liquidator’s duty is to ascertain whether creditors with a possible claim intend to press that claim including by direct inquiry if required. However, a liquidator is not bound to outline the basis of possible claims and indeed it would be contrary to the liquidator’s duty of impartiality as between creditors if there were to be any communication to that effect.
Mr Roberts seeks to distinguish Re Ion Ltd on the basis that it does not stand for anything by way of principle and, further, the case arose in a different context that did not give rise to the questions of impartiality that arise in the case of a liquidation.
I do not accept GRAIL’s submission that the liquidator would be justified in doing nothing further than adjudicating upon the proofs already received. Mr Whitington submits that since the Notice to shareholders was sent in February 2011, the liquidator has received written responses from more than 1,200 shareholders and telephone enquires from approximately 1,000 shareholders. It is clear that there is a level of confusion amongst shareholders that my directions ought to seek to address partly through the provision of further information. In my view, it would be too narrow to direct that the liquidator correspond only with the confused class of potential shareholder claimants on the limited basis suggested by GRAIL. Further, it is impossible to determine exactly which shareholders fall within this confused class.
Whilst I accept the submission of Mr Roberts that it may be seen to be contrary to the liquidator’s duty of impartiality to advise a potential claimant how to present a claim and that the liquidator would likely admit such a claim if lodged, I do not consider that they are the directions being sought by Mr Whitington or Mr Livesey. The submissions before me seek, in part, to address the shareholders’ lack of information to date upon which to formulate a claim, particularly when compared with the information available to the PLI Creditors.
Directions
Paragraphs 1.1 and 1.2 – Extent of the liquidator’s response to enquiries made by shareholder claimants
In Re ION Ltd,[9] Dodds-Streeton J expressed the obligations of the liquidator as follows:
A liquidator is obliged to inquire into all claims. He or she has a duty to invite proofs of claims from persons with claims, even if they have not responded to the advertisement, if the liquidator is aware of creditors who have not proved.
[9] (2010) 80 ACSR 302; [2010] FCA 1119 at [51].
In my view, the liquidator ought not advise individual shareholders of their right to claim in the liquidation. I consider it appropriate that prospective claimants be given sufficient information without the liquidator then having to answer specific requests from shareholders.

In my view, the potential shareholder claimants ought to be provided with further information. PLI Creditors have had access to a vast amount of information. A detailed overview of the legal background to shareholder claims has already been published on the liquidator’s website. While it was acknowledged by counsel that shareholders were made aware of the existence of the website in an endorsement to the Notice Inviting Formal Proof of Debt or Claim published and mailed in February 2011, I consider it appropriate that a further circular be mailed to the Company’s 20,313 current and former shareholders with the exception of those shareholders to whom previous circulars have been returned unopened and those who have previously lodged a formal proof of debt. The circular should indicate that the recipient may have a claim in the liquidation and that additional information to assist in completing a formal proof of debt, if applicable, is available on the website.
In respect of those shareholders whose previous correspondence has been returned unopened, nothing further need be done. In respect of those who have positively indicated they do not intend to pursue a claim, I consider it prudent that they receive the circular.
As for the liquidator’s website, in my view it should be expanded to contain general advice as to the procedural nature of how to complete and formally lodge a proof of debt with the liquidator. I note that the wording of the Notice Inviting Formal Proof of Debt or Claim dated 17 February 2011 is posted on the liquidator’s website. I consider it appropriate that the liquidator’s website makes it clear how the shareholders are able to request a Formal Proof of Debt form.
In an attempt to avoid the need to respond to individual requests for information, in my view the Company’s share register as at the date of liquidation ought to be uploaded to the website. In addition, it would be advisable to make available on the liquidator’s website the legal advice received relating to the admissibility of Sons of Gwalia-type claims to assist shareholders in understanding the basis upon which a proof of debt may be lodged. A clear indication ought to be made that the website does not purport to give the shareholders legal advice and that they are advised to seek their own legal advice if required.
I do not consider it necessary for the two affidavits of the liquidator to be uploaded to the liquidator’s website. While I do not accept Mr Roberts’ submission that the affidavits evince prejudgment of the shareholders’ claims on the part of the liquidator, I view the information contained within the affidavits to be superfluous to the shareholders’ needs in light of the other content to be posted on the website. The affidavits of the liquidator do no more than set out the background to the applications for directions, the procedural matters relating to his calling for proofs of debt and a summary of the legal advice received relating to the admissibility of shareholder claims. I do not consider the affidavit evinces any intention on the part of the liquidator to prejudge the adjudication process.
Paragraph 1.3 - Finality of lodgement date
The liquidator is to allow 28 days after the posting of the circular to shareholders for relevant persons to lodge any new or varied proofs of debt. Adjudication of proofs lodged after that date is at the discretion of the liquidator.
After this date, the liquidator is not required to take further action, even if there is no response or mail is returned unopened.
Paragraph 1.4 - Publishing of a Notice of Intention to Declare a Dividend pursuant to Regulation 137
In my view, it is sufficient for the liquidator to publish a Notice of Intention to Declare a Dividend, in accordance with Form 142, in The Gazette and on the liquidator’s website. I consider that Regulation 137(1)(b) requiring this Notice be provided in writing to creditors or potential creditors of the Company can be dispensed with in the circumstances.
Paragraphs 1.5 and 2 - Funding of legal representation of the other parties and the liquidator’s costs
The costs of the liquidator and the other parties on this application be costs in the liquidation.
Conclusion
Following my hearing of the application, I provided counsel with a draft of the directions I was minded to make in line with these reasons. I heard further submissions from the parties as to the exact form the directions would take. The order setting out my directions and the circular to be sent to shareholders is annexed to these reasons.
I order that the costs of the liquidator, Genoa Resources and Investment Limited (in liquidation) and the shareholder representatives on the application be costs in the liquidation.
ORDER
Judicial Officer(s):  The Honourable Justice Sulan
Date of application:  27 September 2011
Application made by:  Mr John Sheahan in his capacity as Liquidator of the Defendant (the Liquidator)
Date(s) of hearing:  28 March and 16 April 2012
Date of order:  17 April 2012
Appearances:  RJ Whitington QC and SJ Doyle for the Liquidator
BC Roberts for Genoa Resources and Investment Limited (In Liquidation)
MC Livesey QC and PJ Adams for the Representative of the Shareholders of the Defendant
THE COURT DIRECTS that:
1.It is appropriate and justified for the Liquidator to adopt the following procedure to notify prospective creditors of the Defendant of the right to lodge a proof in the liquidation of the Defendant, namely send a circular to shareholders in substantially the form attached as Annexure A to these Orders (“Circular”), which should be mailed by ordinary pre-paid post to the postal address last known to the Liquidator from the Defendant’s records of those shareholders who were sent the Liquidator’s notice dated 23 February 2011, with the exception of those shareholders to whom such notice was returned unopened or undeliverable and those who have previously lodged a formal proof of debt.
2.It is appropriate and justified for the Liquidator to do nothing further to identify a claim in respect of shareholders whose previous correspondence has been returned unopened.
3.It is appropriate and justified for the Liquidator to expand the Liquidator’s website to contain the following:
a.General advice on the procedural nature of how to complete and formally lodge a proof of debt in the liquidation;
b.The Defendant’s share register as at the date of liquidation;
c.All of the legal advice received by the Liquidator relating to the admissibility of Sons of Gwalia-type claims as exhibited to the affidavits of the Liquidator sworn 14 September 2010 and 27 September 2011; and
d.A statement that the website does not purport to give the shareholders legal advice and that they should seek their own legal advice if required.
4.The Liquidator should allow 28 days after the posting of the Circular for relevant persons to lodge any new or varied proofs of debt. After this date, the Liquidator is not required to take further action either to inform shareholders of any right to prove in the winding up or to elicit any proof or claim from such shareholders even if there is no response or the mail is returned unopened.
5.After completion of the process referred to in paragraphs 1-4 above it would be appropriate and justified for the Liquidator to proceed with and complete the winding up of the Defendant on the footing that any claim for a shareholder or shareholders not lodged by way of formal proof of debt under regulation 120 has not been and will not be proved in the winding up, that the property otherwise divisible amongst any such potential claimants shall be available for application and distribution in the winding up and that no further steps need be taken either to inform shareholders of any right to prove in the winding up or to elicit any proof or claim from any such shareholders.
6.It is sufficient for the Liquidator to discharge his duties under Companies Regulation 137, to publish a Notice of Intention to Declare a Dividend, in accordance with Form 142, in the Gazette and on the Liquidator’s website.
7.The costs of the Liquidator, Genoa Resources and Investment Limited (in liquidation) and the shareholder representative on the application be costs in the liquidation.
Annexure A
CIRCULAR TO SHAREHOLDERS
THE DUKE GROUP LIMITED (IN LIQUIDATION)
(FORMERLY KIA ORA GOLD CORPORATION NL)
On 11 July 1989 The Duke Group Limited (Duke) was placed into liquidation by order of the Supreme Court of South Australia (Court) and I was appointed Duke’s Liquidator. Until 1988 Duke was named Kia Ora Gold Corporation NL (Kia Ora).
I have previously called for and admitted claims by creditors owed debts by Duke as at the date of my appointment. Following the decision of the High Court of Australia in Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160 and following directions made by the Court, notices were published inviting claims by shareholders of Duke.
As directed by the Court, notices inviting claims were sent to those shareholders at their last known addresses, whose shareholding arose as a result of the takeover by Kia Ora (as Duke was then known) of Western United Limited in 1987 as it was considered only those shareholders might be able to make a claim against Duke that was admissible in the winding up of Duke in insolvency.
All admitted claims as at the date of liquidation have been paid in full. There remain approximately AUD [insert current amount] available to creditors in the liquidation. Accordingly, Duke has been returned to a condition of solvency for the purposes of considering claims by creditors of Duke, including shareholders of Duke.
A number of shareholders of Duke have written to me in terms that either:
(a)do not make clear whether or not the claim is to be pressed; and/or
(b)expressed disinclination to press a claim but do so apparently on the basis of some misapprehension as to the procedure for pressing a claim and/or the basis upon which it might be pressed.
As a result of the responses received from shareholders referred to above, I obtained further orders from the Court seeking directions to communicate further with those shareholders and to circulate one final notice informing all shareholders of their right to lodge a claim in the liquidation of Duke.
Which shareholders may have a claim?
You may have a claim in the liquidation of Duke for the reduction in the value of your shares following two takeovers completed by Kia Ora Gold Corporation NL (as Duke was then called) in 1987 and 1988.
Specifically, shareholders who held shares immediately before Kia Ora’s:
1.takeover of Western United in 1987 may have a claim for 37 cents per share held; and
2.acquisition of the assets of the Duke Holdings Limited Group of Companies may have a claim for 21 cents per share held.
Additional information to assist in completing a formal Proof of Debt, if applicable, is available on the website you should do if you wish to make a claim in the liquidation of Duke?
If you wish to make a claim in the liquidation of Duke, you need to complete and sign a Proof of Debt form and lodge the form with me by [insert date]. A Proof of Debt form is available from
You should also attach to the Proof of Debt form copies of share certificates and any other documents you still have relating to your acquisition of shares in Kia Ora / Duke.
Attached to this Circular is an example of a completed Proof of Debt form.
Information from Duke’s share register is available to confirm the number of shares held by each shareholder as at 11 July 1989, being the date that I was appointed Liquidator of Duke (and therefore the relevant date for provable claims in the liquidation of Duke). However, the Share Registry does not assist in determining how many shares were held at earlier dates (including the dates of the takeover of Western United in 1987 and the acquisition of the assets of the Duke Holdings Limited group of companies in 1988).
You should send a copy of the completed Proof of Debt to me by [insert date]. After that date, I intend to declare a final dividend. Any Proofs of Debt received after [insert date] may not be admitted to proof.
Neither I nor the website purports to give any shareholder of Duke legal advice. I recommend that any shareholder who is uncertain whether they have a claim in the liquidation of Duke, or how to make a claim, should seek legal advice.
Attached to the website is:
(a)a copy of Duke’s share registry as at the date of Duke’s liquidation;
(b)the legal advice obtained by me relating to the admissibility of shareholders’ claims; and
(c)a Proof of Debt form to be completed by any shareholder or other creditor of Duke wishing to submit a claim.
Dated this           day of April 2012
John Sheahan
Liquidator