Best Invest NZ Company Limited v Japan Business Consulting Company Limited

[2019] NZHC 1101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-870

[2019] NZHC 1101

UNDER

The Companies Act 1993

IN THE MATTER OF

The liquidation of JAPAN BUSINESS

CONSULTING LIMITED and the EAST
WIND group of companies

BETWEEN

BEST INVEST NZ COMPANY LIMITED
Plaintiff

AND

JAPAN BUSINESS CONSULTING COMPANY LIMITED

Defendant

CIV-2019-404-872

BETWEEN

BEST INVEST NZ COMPANY LIMITED
Plaintiff

AND

EAST WIND HOLDINGS LIMITED

Defendant

CIV-2019-404-873

BETWEEN

BEST INVEST NZ COMPANY LIMITED
Plaintiff

AND

EAST WIND NOMINEE LIMITED

Defendant

CIV-2019-404-874

BETWEEN

BEST INVEST NZ COMPANY LIMITED
Plaintiff

AND

EAST WIND MEDICARE LIMITED

Defendant

BEST INVEST NZ COMPANY LIMITED v JAPAN BUSINESS CONSULTING COMPANY LIMITED [2019] NZHC 1101 [17 May 2019]

CIV-2019-404-876

BETWEEN

BEST INVEST NZ COMPANY LIMITED

Plaintiff

AND

EAST WIND PROGRAMME LIMITED

Defendant

CIV-2019-404-879

BETWEEN

BEST INVEST NZ COMPANY LIMITED
Plaintiff

AND

EAST WIND COMPANY LIMITED

Defendant

Hearing:	On the papers
Appearances:	R Sussock for the Plaintiff
Judgment:	17 May 2019

JUDGMENT (NO.2) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 17 May 2019 at 4:30pm

pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

Solicitors:

Lowndes Jordan (Rachel Sussock), Auckland, for the Plaintiff

[1]                   In my decision of 13 May 2019,1 I appointed Messrs Downes and Moore interim liquidators of East Wind Company Ltd and East Wind Nominee Ltd, but I declined to appoint them interim liquidators of the other companies, Japan Business Consulting Company Ltd, East Wind Holdings Ltd, East Wind Medicare Ltd and East Wind Programme Ltd. I reserved leave to the plaintiff to apply again if it could show on new evidence a basis for appointing interim liquidators of those companies.

[2]                   Best NZ Company Ltd has provided new evidence and applies afresh for interim liquidators to be appointed for East Wind Holdings Ltd. The interim liquidators of Best Invest NZ Company Ltd have obtained bank accounts. Records from the ASB bank show that $1,099,900 has been paid from Best Invest NZ Company Ltd to East Wind Holdings Ltd and has not been repaid. It relies on transactions in 2014 and 2015. With that evidence, Best Invest NZ Company Ltd has shown that it is a creditor of East Wind Holdings Ltd. That gives it standing to apply for a liquidation order. It may be assumed that East Wind Holdings Ltd held and may continue to hold assets corresponding in value to the payments made to it by Best Invest NZ Company Ltd. The company is in limbo as it does not have a director, and the interim shareholder, the Crown, is unlikely to appoint a director. The widow of the deceased director cannot be traced. With the void in management and control of the company, there is a risk of assets disappearing. The interests of creditors should be protected on an interim basis until the court can consider the substantive merits of the application against East Wind Holdings Ltd.

[3]                   It is therefore appropriate to appoint interim liquidators. In CIV-2019-404-872 I appoint Messrs Downes and Moore interim liquidators with the same powers and on the same terms on which I appointed them interim liquidators of East Wind Company Ltd and East Wind Nominee Ltd. The time of delivery of this decision marks the time of the order.

……………………………

1      Best Invest NZ Company Ltd v Japan Business Consulting Company Ltd [2019] NZHC 1037.

Associate Judge R M Bell