Agnew v Pardington

[2006] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/05

BETWEENRICHARD DALE AGNEW AND JOHN ANTHONY WALLER

First Appellants

ANDFLETCHER DISTRIBUTION LIMITED

Second Appellants

ANDRODNEY GANE PARDINGTON AND GRANT STEPHEN JARROLD

First Respondents

ANDTHE OFFICIAL ASSIGNEE

Second Respondent

Court:Anderson  P, Glazebrook and Chambers JJ

Counsel:M M B van Ryn and J P Ion for Appellants

S E Cameron for First Respondents
G S Caro for Second Respondent

Judgment:3 March 2006 

JUDGMENT OF THE COURT

THE COURT ORDERS THAT THE FIRST RESPONDENTS PAY THE SURPLUS PROCEEDS TO:

(a)Fletcher, to the extent that the Company has secured indebtedness to Fletcher;  and then

(b)any other secured creditors in accordance with their securities and priorities;  and then

(c)the Official Assignee as liquidator of the Company, to the extent that there are any surplus funds after payment of secured creditors.

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REASONS

(Given by Glazebrook J)

[1]       In our judgment of 22 December 2005 in this matter we gave the parties leave to seek further orders from the Court as to the payment of the surplus funds arising from the liquidation of The Building Depot Limited (the Company) after payment of preferential creditors, security holders with security interests ranking ahead of the ANZ and the ANZ.

[2]       The parties have agreed that the first respondents will be responsible for ensuring all creditors subordinate to Fletcher are paid out of the surplus funds in accordance with their priorities.

[3]       The above orders are, as a consequence, made by consent.

Solicitors:
Simpson Grierson, Auckland for Appellants
Lowndes Associates for First Respondents
Ministry of Economic Development, Auckland for Second Respondent