100 Investments Limited v Registrar of Companies
[2020] NZHC 880
•1 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-001664
[2020] NZHC 880
UNDER the Companies Act 1993 IN THE MATTER OF
an application to restore SPF NO 10 LIMITED to the Register
BETWEEN
100 INVESTMENTS LIMITED
First Applicant
FTG SECURITIES LIMITED
Second ApplicantRFD FINANCE LIMITED
Third ApplicantTOMANOVICH HOLDINGS LIMITED
Fourth ApplicantAND
REGISTRAR OF COMPANIES
Respondent
Hearing: 18 March 2020 Appearances:
A Barker QC for Applicants
No appearance for Respondent (abiding decision of the Court) D Bigio QC and N Firth for LPF, PVL Group Ltd in opposition
Judgment:
1 May 2020
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by Associate Judge Andrew on 1 May 2020 at 3.30 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date……………………..
100 INVESTMENTS LTD & ORS v REGISTRAR OF COMPANIES [2020] NZHC 880 [1 May 2020]
Introduction
[1] The applicants are assignees of top-ranking securities in subsidiaries of Property Ventures Ltd (PVL). PVL and its subsidiaries (the PVL group) are now in liquidation. They were originally involved in individual property developments and investments.
[2] The liquidators of the PVL group brought proceedings against various parties, including former directors of PVL and PricewaterhouseCoopers, in relation to alleged breaches of duty said to have contributed to the PVL group’s collapse in 2010 (the PVL proceedings).
[3] To fund the PVL proceedings the liquidators entered into a litigation funding agreement (the funding agreement) with SPF No 10 Ltd (SPF). SPF is the subject of the current application. It was a special-purpose vehicle incorporated for the PVL proceeding and a wholly-owned subsidiary of LPF Group Ltd (LPF). SPF has been removed from the Register of Companies (the Register).
[4] PVL’s liquidators subsequently reached confidential settlements with each of the defendants in the PVL proceedings, who agreed to pay certain amounts to the liquidators (the PVL settlement). The PVL proceedings were then discontinued.
[5] The applicants have filed related proceedings (100 Investments Ltd & Ors v Walker & Ors CIV-2019-404-1160) in this Court against the liquidator of PVL and its subsidiaries; and against SPF and LPF (the primary claim proceedings). The substance of the primary claim proceedings is that some of the proceeds from the PVL settlement must have belonged to PVL’s subsidiaries and should have been applied to their benefit. If that had been done, the applicants say that they would have received part of the settlement proceeds through the securities that they held.
[6] In order to advance the primary claim proceedings, the applicants in their present application before me seek orders pursuant to s 329 of the Companies Act 1993 (the 1993 Act) to restore SPF to the Register, and for leave to continue proceedings against SPF in the primary claim proceedings, pursuant to s 248(1)(c) of the 1993 Act (the applications).
[7] LPF opposes the applications and the Registrar of Companies abides the Court’s decision. LPF contends there is no utility in restoring SPF to the Register – the sole reason for the applications is to pursue a claim against SPF in the primary claim proceedings, which LPF says is factually and legally unsustainable.
[8] The applicants say the legal basis for their claim against SPF is reasonably simple. The funds received in the PVL settlement were owned in part by the applicants. This is either because they were after-acquired property of the subsidiaries under ss 43 and 44 of the Personal Property Securities Act 1999 (PPSA), or they were the proceeds of collateral under s 45 of that Act.
Factual background
[9] The applicants describe the funding for the PVL group as follows. Loans were made by third party funders to the individual subsidiary and secured by a first ranking charge over the assets of that subsidiary. There were then cross-guarantees given by other members of the group, including PVL. PVL was not a substantial borrower in its own right. Its liability was only as a result of a claim by a creditor or a subsidiary company pursuant to a guarantee that PVL had granted.
[10] In terms of the guarantees that PVL provided, it granted Hanover Finance Ltd (Hanover) a GSA over its assets to support its guarantee of loans to one of its subsidiaries (the Allied GSA).1 The underlying debt for that advance and the supporting securities were assigned to Allied Farmers Investment Ltd and then SPF (the Allied Finance loan).
[11] The PVL group was placed into liquidation in the period between 2010 and 2012. Mr Walker and Mr Scutter were appointed the joint liquidators of PVL. Mr Walker was the sole liquidator of the subsidiaries.
[12] Following their appointment, the liquidators investigated the potential for claims on behalf of unsecured creditors of the PVL group. On 31 October 2012, to facilitate those claims, the liquidators entered into the funding agreement.
1 The detail of the Allied GSA was summarised by the Supreme Court in PricewaterhouseCoopers v Walker [2018] 1 NZLR 735 at [34]-[36].
[13] The Supreme Court considered the funding agreement and whether it amounted to champerty and/or abuse of process in its 2018 judgment PricewaterhouseCoopers v Walker.2 The relevant parts of the Supreme Court’s description of the funding agreement are as follows:3
(a)SPF would obtain a first ranking security interest over the assets of PVL, and in particular, would acquire the Allied Finance loan and the Allied GSA.
(b)SPF would fund the litigation through a loan to PVL. The costs of the litigation were referred to as the “Project Costs”.
(c)If any claim was successful, SPF would be repaid the Project Costs. It would also receive a “Services Fee” of either two times the Project Costs or 42.5 per cent of the remaining amount recovered (whichever was greater).
[14] SPF subsequently obtained an assignment of the Allied Finance loan with securities, as well as a loan from the Dominion Finance Group Ltd with securities (not the focus of these proceedings), both of which were guaranteed by PVL. SPF therefore held a priority claim to any funds received by PVL.
[15] Following the signing of the funding agreement, the liquidators of the PVL group issued the PVL proceedings. This included not only claims against the former directors and the auditor of PVL (namely, PricewaterhouseCoopers), but also the valuers of various properties owned by PVL’s subsidiaries. The claims were brought through a combination of various plaintiffs. All of the claims sought recovery based on the combined liability of the subsidiaries to their third-party funders (some $302m), and some of the claims were brought directly in the name of the subsidiaries (rather than that of PVL).
[16]The PVL proceedings were settled in the period between 2015 and 2017.
2 Above n 1.
3 At [18]–[36].
[17] The applicants say that after the deduction of the liquidators’ fees, all funds appear to have been paid to SPF and/or LPF, either under the funding agreement, or the Allied GSA. They say that no funds appear to have been paid to PVL’s subsidiaries nor dealt with as part of their liquidations.
[18] As assignees of top-ranking securities in seven of the subsidiaries, the applicants say PVL’s subsidiaries owed them at least 24 per cent of the total amount of the claims that were settled.
[19] On 28 February 2019, SPF was placed into liquidation by special resolution of its sole shareholder, LPF.
[20] On 5 March 2019, SPF’s liquidator issued his first and final report. On the basis of advice from management, he concluded that the company did not have any assets or liabilities and was therefore solvent. He did not take any steps to investigate that claim.
[21]SPF was removed from the Register on 4 April 2019.
[22] The primary claim proceedings were filed on 14 June 2019.4 At that time, the applicants say they were not aware that SPF had been removed from the Register. They filed this application once they became aware of that fact.
[23] LPF and the other defendants then applied to strike out the primary claim proceedings. Shortly before the hearing of the strike-out application, the plaintiffs (the applicants in these proceedings) agreed to re-plead on the basis of three draft causes of action provided to LPF and the other defendants. These draft causes of action are annexed to the applicants’ submissions in this case.
[24] LPF says it withdrew its strike-out application not because it conceded that the claims had merit, but only because proposed amendments would result in the claim complying with the basic rules of pleading. LPF remains of the view that those claims cannot succeed against it or SPF.
4 Described at [5] above.
[25] The applicants here have not yet filed an amended statement of claim. However, in the draft amended document before me, attached to their submissions, the applicants make the following claims:
(a)In paying away the settlement proceeds to SPF and LPF, the liquidators, SPF and LPF:
(i)Have converted the funds (on the authority of Dunphy v Sleepyhead Manufacturing Co Ltd);5
(ii)are liable for money had and received (on the authority of
McKay v Johnson);6 and
(iii)hold the funds subject to the applicants’ security interests (in accordance with the provisions of the PPSA).
[26] The applicants say that SPF is a critical party in the primary claim proceedings. It was SPF which was party to the funding agreement and took the assignment of the Allied GSA. It was also a party to the PVL settlement and the applicants thereby claim that SPF’s role and its potential liability is central to those proceedings.
[27] LPF was served with a copy of the application to restore SPF to the Register, as it was SPF’s sole shareholder at the time of removal. LPF filed a notice of opposition on 31 October 2019.
Relevant legal principles
[28] Section 329 of the 1993 Act sets out the requirements for an order restoring a company to the Register. Section 329(2) describes those persons who have standing to make an application. Those persons include a “creditor” of the company.
[29] A creditor is defined in s 240(1) of the Act as a person who, in the liquidation, would have a claim under s 303. The admissible claims under s 303 include:
5 Dunphy v Sleepyhead Manufacturing Co Ltd [2007] 3 NZLR 602 at [50].
6 McKay v Johnson [2018] NZAR 543 at [45].
Subject to subsection (2) of this section, a debt or liability, present or future, certain or contingent, whether it is an ascertained debt or a liability for damages, may be admitted as a claim against a company in liquidation.
[30] An unresolved civil claim against a company is a claim that can be admitted in liquidation.7
[31] If a claimant has standing to apply for restoration under s 329, the Court still has a discretion. It may nonetheless refuse restoration. This has been described as a negative discretion in the sense that, unless there are some discretionary factors that point against restoration, the order should be made:8
Those within s 329(2)(a) and (b) are entitled to apply for a company to be restored; others need leave under (c). The grounds for a restoration order are set out in s 329(1). The just and equitable ground under s 329(1)(b) does not require consideration if the applicant can satisfy the Court of at least one of the more specific matters in s 329(1)(a). As to these more specific grounds under (a), even if the Court is relevantly satisfied, it has a discretion whether to restore the company. The section is silent on matters to be considered in that residual discretion, but presumably they are negative factors – matters that count against restoration, even if the grounds in (a) have been made out. In other words, if one of the grounds in (a) is proved, restoration should follow, unless some discretionary factor against restoration applies. I do not understand the section to require a residual discretion hurdle to be surmounted before restoration, in the absence of any negative factors. On the other hand, the more general “just and equitable” basis in (b), allows discretionary factors going both ways to come into consideration.
(emphasis added).
[32] In determining the merits or otherwise of the potential claim that would be made against (or by) a company, the courts do not generally require a high standard of proof. The claim need only be one that appears to be genuine:9
An application to restore a company to the Register is not the occasion for a thorough examination of the merits of the applicant’s claim. The process is a relatively summary one. The cases show that the merits of the claims are rarely subject to in-depth scrutiny. In some cases the courts check that claims will not be statute-barred. That aside, as long as the applicant appears to have a genuine case (as opposed to one that is frivolous, vexatious or without merit), which it is pursuing in good faith, the courts have not required an applicant to prove more.
(emphasis added).
7 See, for example, Re Saxpacks Foods Limited [1994] 1 NZLR 605; Re Salamanca Investments Ltd: Wellington City Council v Registrar of Companies [2015] NZHC 572, [2015] 3 NZLR 411.
8 Re Salamanca Investments Ltd, above, at [97].
9 At [104].
[33] Cases where a court refuses to restore a company to the Register are unusual.10 The contest on such an application is between principles of access to justice and rules of pure administrative convenience.11 In Re Pranfield Holdings Ltd, the Court stated the approach in the following way:12
[T]he principle must be that the somewhat peremptory power of the Registrar to remove deadwood from the corporate scene, will not prevail against the rights of those so removed, or of others with whom they have dealt, to reinstate the company to pursue remedies provided by substantive law, unless it is plain that the proceeding, if unsuccessful, will still be nugatory. This principle puts grand notions of access to law ahead of mere rules for administrative ease.
Analysis and decision
[34] LPF’s principal ground of opposition is that the proposed claims against SPF of conversion; money had and received; and the claims under the PPSA; are fundamentally unsustainable and no real or legitimate purpose would be served by making an order for restoration in these circumstances.
[35] Mr Bigio QC, for LPF, accepts the broad definition of creditor in s 240(1) of the 1993 Act. However, he challenged Mr Barker’s contention that an application under s 329 is generally only refused where there is no real or legitimate purpose to be served by the making of the order. Mr Bigio contended that the threshold is not so low.
[36] I accept there is merit to Mr Barker’s submission that I should approach the applications before me in a sequential order. Logically, the prior question is whether the company should be restored to the Register under s 329. The question as to whether leave should be granted under s 248(1)(c) then follows. However, where (as is the case here) the sole and undisputed purpose of the s 329 application is to pursue proceedings against SPF, then in my view it is relevant to address whether the proceedings are capable of success, as would be the case for leave under s 248(1)(c).
10 John Hammonds & Co Ltd v Registrar of Companies [1989] 3 NZLR 690 at [57].
11 Re Pranfield Holdings Ltd [2001] 9 NZCLC 262,577 at [20].
12 At [20].
[37] I also reiterate that in relation to both ss 329 and 248(1)(c), in determining the merits or otherwise of the potential claims, the requisite standard of proof is low.13
[38] Therefore, the critical issue I must determine is whether the applications, as contended, are fundamentally unsustainable. If so, I accept that I should decline to make an order under s 329.
[39] I accept Mr Bigio’s submission that the withdrawal by LPF of its strike-out application cannot properly be interpreted as an acknowledgement that there is some merit to the claims the applicants wish to bring against SPF (which are essentially the same as the causes of action against PVL). As I have stated, the plaintiffs in the primary proceedings are yet to file an amended statement of claim containing the proposed new causes of action, and the reason LPF withdrew its strike out application was because the proposed amendments the plaintiffs intended to make would comply with the basic rules of pleading. The principal ground for the strike-out application was that the claim did not comply with rr 5.26 and 5.27 of the High Court Rules 2016, in that it failed to adequately plead any specific cause of action against LPF and specify the relief or remedy sought on each apparent cause of action.
[40]I turn now to address the merits of the three causes of action proposed.
Conversion
[41]As noted above, the applicants rely upon the Court of Appeal’s decision in
Dunphy v Sleepyhead Manufacturing Co Ltd.14
[42] The issue in Dunphy was whether a security agreement with a debtor could be enforced against the liquidators of the debtor – and whether those liquidators could then be liable for conversion where they had refused to hand over to the respondent (Sleepyhead) the goods subject to its security agreement and to account to Sleepyhead for the proceeds of sale.
13 Re Salamanca Investments Ltd, above n 7; and in relation to s 248, see Fisher v Isbey (1999) 13 PRNZ 182 at [23].
14 Above n 5.
[43] That Court held that liquidators are agents of companies, not merely third parties. This meant that Sleepyhead’s security interest was enforceable against the liquidators. It was further held that the liquidators were wrong in refusing to recognise Sleepyhead’s security interest and in the absence of any superior interest, Sleepyhead would have been entitled to possession of the goods subject to its security interest under s 248(2) of the 1993 Act (and were in any case entitled to surplus from the liquidators under s 117 of the PPSA). The Court also noted that the liquidators would have been liable for conversion had it not been for the fact that they were also acting for the secured creditor (BNZ) which had a superior interest to Sleepyhead.
[44] I agree with Mr Bigio’s submission that Dunphy does not apply to cases which involve genuine third parties, and that in this case it is difficult to see how there is an arguable case for conversion against either the liquidators, LPF, or SPF. In these circumstances, the liquidators appear to have discharged their duties to a superior security interest holder.
[45] Mr Barker, however, submitted that the liquidators are liable in conversion on two bases – the first is that the liquidators have used a secured asset (being the claim that the subsidiaries had against the third parties, which were subject to the applicants’ securities); and the second is that they used the proceeds of the realisation of that asset, which were also subject to the applicants’ security interest (as after-acquired property). Mr Barker contended that Dunphy confirms that the liquidators can be liable in conversion to the whole of the security interest in respect of both assets.
[46] However, that submission does not address the question of a superior security interest, nor does it address the question of the liability of LPF or SPF as third parties.
[47] Mr Barker further submitted that LPF and SPF mischaracterised themselves as third parties to the wrongs. It is argued that liability in conversion (and for money had and received) is not restricted to the person who first disposes of or delivers another person’s property to a person not entitled to it. A claim for conversion can also arise,
it is contended, against a party who receives property belonging to another person.15 This principle is explained by the authors of the Laws of New Zealand:16
Just as it is conversion wrongfully to dispose of goods, so it is conversion where a person wrongfully receives them, if that reception amounts to an assumption of wrongful dominion and an assertion of a right inconsistent with that of the true owner; thus a person receiving goods may be guilty of conversion even where that person is innocent of the wrongful nature of the transaction and gives value for the goods. Seemingly it is not necessary that there is first a demand and refusal.
Money had and received
[48] Mr Barker contended that an action for money had and received could also arise against a party who received funds belonging to the plaintiff from a third party, subject to the ordinary defences that apply (such as change of position). He relies upon the seminal speech of the House of Lords in Lipkin Gorman v Karpnel Ltd.17
[49] In McKay v Johnson, Muir J held that a liquidator who does not account to a secured creditor for a secured asset is liable to the secured creditor for conversion, though a failure to account in respect of money is usually remedied by an action in money had and received.18
[50] The Court further held that an action for money had and received does not depend on any proof of wrongdoing or impropriety on behalf of the recipient, although there must be some element of unjustness in the defendant retaining the monies received.19
[51] I accept Mr Bigio’s submission that in McKay v Johnson the Court was dealing with a claim by receivers of companies against the liquidators and that, strictly speaking, this was not a claim against a third party. However, it is clear from the authorities, as Mr Barker submitted, that liability for money had and received is not restricted to the person who first disposes of or delivers a person’s property to another person not entitled to it. Furthermore, and in relation to the element of unjustness, the
15 Mr Barker relies on the case of Nash v Barnes [1922] NZLR 303 (SC).
16 Wrongful Interference with Goods: Conversion and Detinue at [234.].
17 Lipkin Gorman v Karpnel Ltd [1991] AC 548 (HL).
18 McKay v Johnson [2018] NZAR 543 at [45], [83]-[87].
19 At [48].
question of whether SPF had a right to assert priority over the proceeds of the PVL settlement appears to be a live issue. It seems PVL’s subsidiaries did not sign the funding agreement.
[52] LPF, however, submitted that SPF would have a complete defence to any claim because it had a priority to the funds received in settlement under the funding agreement, and by reference to the “salvage principle”. LPF relies upon the Federal Court of Australia’s decision, IMF (Australia) Ltd v Meadow Springs Fairway Resort Ltd (in liq).20 In that case the Federal Court found that the litigation funders’ remuneration was an expense incurred by a liquidator in the course of realising a secured asset. It therefore came within the salvage principle and so was an expense to be borne by the fund, achieved by realisation of secured property before any claim by secured creditors to the same fund.
[53] While that may be so, it does not follow that upon application of such a principle the fees charged under the funding agreement will automatically be accepted by a court as proper in the circumstances. In this regard, I note that the Supreme Court in PricewaterhouseCoopers v Walker, did express doubts about the funding arrangements at issue here.21
[54] Furthermore, as Mr Barker submitted, the settlement proceeds appear to have been disbursed in accordance with the funding agreement as well as the Allied GSA. Any argument over the applicability or otherwise of the salvage principle could only be relevant to the funds disbursed under the funding agreement. The principle would not apply to funds disbursed under the Allied GSA.
[55] Therefore, I find I cannot conclude in this limited context that the applicants’ claims are incapable of success. For the purposes of ss 329 and 248(1)(c), such claims appear to have sufficient merit.
[56] Mr Barker further argued funds disbursed under the Allied GSA were presumed to be funds received by PVL on behalf of all its subsidiaries who made a
20 IMF (Australia) Ltd v Meadow Springs Fairway Resort Ltd (in liq) [2009] FCAFC 9.
21 Above n 1.
claim, and that those claims had been settled. Those funds would thus need to be apportioned between the subsidiaries. I am of course in no position to assess the strength of that claim but, again, cannot conclude at this stage that it is altogether incapable of success.
Application of ss 43 and 44 of the PPSA
[57] If a security agreement expressly gives a secured party a security interest in after-acquired property, the general position under ss 43 and 44 of the PPSA is that the security interest will simply attach to new personal property as and when the debtor obtains rights in it – no specific appropriations are needed.
[58] Section 16 of the PPSA defines “debtor” (most relevantly) as “a person who owes payment or performance of an obligation secured, whether or not that person owns or has other rights in the collateral”; and “after-acquired property” as “personal property that is acquired by a debtor after the security agreement is made”.
[59] Mr Bigio submitted that SPF did not acquire the proceeds as collateral. He says that is a fallacy underlying all of the applicants’ claims. SPF did not, Mr Bigio argued, purchase a cause of action and keep the money. There was simply an agreement for the exploitation of the cause of action.
[60] In response, Mr Barker submitted that the claim under the PPSA is a simple “proprietary-based claim”. The applicants allege that part of the proceeds of the PVL settlement were subject to their security interests; being either the proceeds of the collateral (i.e. the chose in action that was prosecuted); or that the proceeds themselves were directly subject to the security interest as after-acquired property.
[61] Mr Barker then argued that the fund was passed to SPF, and then presumably on to LPF. The monies held by LPF and/or SPF were, therefore, subject to the applicants’ security interest. That security interest has been registered and it matters not whether SPF consented to the registration. Under ss 90 and 91 of the PPSA it is not necessary that SPF or LPF gave their consent.
[62] I acknowledge the force of Mr Bigio’s submissions. As I understand it, to succeed, the applicants would have to prove they had a legitimate security interest with SPF (whereby SPF was debtor) which explicitly covered after-acquired property belonging to SPF as debtor. If neither LPF or SPF are or were the debtor (PVL was) it is hard to see how ss 43 and 44 can apply. The legislation clearly states that an interest can only attach to personal property in the possession of the debtor.
[63] In assessing the three proposed causes of action, overall, it seems to me that the applicants’ claims are weak. However, I find that I cannot safely conclude at this stage the proposed causes of action are fundamentally unsustainable and therefore that no real or legitimate purpose would be served by making an order for restoration under s 329. Likewise, I cannot conclude that, notwithstanding the apparent weakness of their claims, the applicants do not have a genuine case. The applicants are yet to obtain full discovery of documents and the factual background is complex. This includes the details of the funding agreement which are not before me and have not been tested through evidence. The jurisprudence makes it clear that an application to restore a company to the Register is not the occasion for a thorough examination of the merits of a claim.
[64] The funding agreement apparently was not signed by the subsidiaries and it is therefore arguable that they are not caught by it. Even if the salvage principle were to apply, it is a question of defence and the application of the principle does not mean that there can be no challenge to the reasonableness of the fees. While Mr Bigio may be correct that the dissenting judgment of then Elias CJ in the PricewaterhouseCoopers case (where she was dissatisfied with the funding arrangements) did point the way for a challenge to the funding agreement, the lack of challenge thus far by the PVL subsidiaries is not necessarily fatal. Furthermore, I do not see how in the context of the applications before me I could conclude that the IMF v Meadow Springs case is on all fours with this one. As Mr Barker submitted, the level of recovery needs to be determined before these sorts of questions can be properly answered.
Conclusion
[65] I find that the grounds for a restoration order under s 329 of the 1993 Act have been made out. The applicants have a genuine case which they are pursuing in good faith and no more is required.
[66] I also find that the applicants have established the grounds for the granting of leave under s 248(1)(c) of the 1993 Act so they may bring proceedings against SPF while it is in liquidation.
[67] I also accept the submission of Mr Barker that I should cancel the liquidator’s final report under s 284 of the 1993 Act. I accept that this is a “necessary step in realising the just outcome … of restoring the company to the Register”.22
[68] The parties have been unable to agree (in the event that I make the relevant orders) as to who should now become the liquidator.
[69] The applicants say that the previous liquidator, Mr Hoole, has so far failed to confirm that he will accept re-appointment. They propose that Mr Hunt be appointed.
[70] LPF opposes the appointment of Mr Hunt as liquidator. It says that by default, if SPF is restored, the presumption is that Mr Hoole should resume as its liquidator.
[71] I find in the circumstances here, that neither Mr Hunt nor Mr Hoole should be appointed, to remove any perception of bias. In my view, a truly independent party should be appointed. In the event that the parties cannot agree on an independent person, the Court will make its own appointment.
Result
[72] I grant the application under s 329 of the 1993 Act restoring SPF to the Register.
22 Registrar of Companies v Body Corporate 307730 [2013] NZCA 659 at [26].
[73] I make an order cancelling the liquidator’s final report under s 284 of the 1993 Act.
[74] The parties are to confer and propose a new and independent liquidator within 14 days. In the absence of agreement, the Court will make its own decision. My orders at [72] and [73] above will lie in court pending the appointment of a new liquidator.
[75] Lastly, I grant leave for the applicants to bring a proceeding against SPF under s 248(1)(c) of the 1993 Act.
[76] As to costs, I am of the preliminary view that the applicants, having succeeded, are entitled to costs on a 2B basis. If the parties cannot agree, then submissions (no more than three pages in length) are to be filed and served within 14 days.
Associate Judge P J Andrew
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