Bowker

[2024] NZHC 3376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2868

[2024] NZHC 3376

IN THE MATTER

AND

of an application under section 32 of the Receiverships Act 1993

IN THE MATTER

AND

of NONI B HOLDINGS NZ LIMITED (in

receivership and administrators appointed

IN THE MATTER

of an application by LEON FRANCIS BOWKER and KRISTAL LOUISE PIHAMA

Applicants

Hearing:	On the papers
Counsel:	A MacDuff and S Jones for the Applicants
Judgment:	13 November 2024

JUDGMENT OF GORDON J

This judgment was delivered by me

on 13 November 2024 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Russell McVeagh, Auckland

RE BOWKER [2024] NZHC 3376 [13 November 2024]

[1]    The applicants, Leon Bowker and Kristal Pihama, the receivers of Noni B Holdings NZ Ltd (in receivership and administrators appointed) (Noni B NZ) seek a number of orders on an urgent basis.

[2]    They have filed an originating application without notice for orders under the Receiverships Act 1993 (Act) which address initial issues arising in the receivership of Noni B NZ as follows:

(a)an order that the period within which notice of termination of Noni B NZ’s employment agreements (Employment Agreements) is required to be given by the applicants to employees of Noni B NZ is extended by approximately three months to end on 13 February 2025 (Employee Order), such that personal liability under any subsisting Employment Agreements does not begin until 14 February 2025;1

(b)an order limiting the receivers’ liability for rent and other payments becoming due under agreements relating to Noni B NZ’s use, possession and occupation of property in receivership (Property Agreements) be limited to that portion of the rent or other payments that accrues from 14 February 2025 until the earlier of the date:

(i)that the receivership ends; or

(ii)on which Noni B NZ ceases to use, possess or occupy the property subject to the Property Agreements,2

(Property Order); and

(c)other ancillary orders.

[3]    There is an affidavit of Mr Bowker in support and a memorandum of counsel each dated 12 November 2024.

1      Receiverships Act 1993, s 32(3).

2      Section 32(5).

[4]    It is explained that the rationale for extending each of the dates to 14 February 2025 is: to enable sufficient time for a (potentially cross-border) sale as a going concern to be fully explored; to enable Noni B NZ to take advantage of the Christmas trading period (for the benefit of creditors, including the landlords who will have tenanted premises over the busy Christmas period, and employees); and to avoid the need for the receivers to come back to Court for a further extension to those periods while the Court is closed over the Christmas break.

[5]    The application requires urgency because the notice periods under s 32 of the Act expire at 5 pm today (13 November 2024).

[6]    Having considered the affidavit of Mr Bowker and the memorandum of counsel I am satisfied that it is in the interests of all affected parties to make the Employee Order and Property Order summarised in [2] above.

[7]    As to the ancillary orders, first there is an application for leave to commence the proceeding by originating application. The Court may permit any proceeding which is not mentioned in rr 19.2 to 19.4 of the High Court Rules 2016 to be commenced by originating application where it is in the interests of justice.3 I consider it is in the interests of justice that the receivers be permitted to commence this application by originating application: the application arises under specific statutory provision, namely s 32 of the Act; the issues relating to the receivers’ liability are clearly defined and confined; the factual issues are unlikely to be disputed and the originating application procedure is the orthodox approach in relation to receivers’ applications under s 32 of the Act.4

[8]    I am also satisfied that this is an appropriate application to be brought without notice.5 I accept that proceeding on notice would cause undue delay and prejudice to the receivers.

3      High Court Rules 2016, r 19.5(1).

4      Grenfell v Stockco Capital Ltd [2024] NZHC 1080 at [8], Re Gower [2020] NZHC 355 at [13]-[16] and Re Eagle [2016] NZHC 10 at [7].

5      Rule 19.5(2).

[9]    I also note that the orders sought provide both for notice of the orders to be given by the receivers and for parties who are affected by the orders to have the ability to apply on notice to the Court for appropriate relief. Accordingly, any party that considers they are prejudiced by the orders is protected.

[10]   I direct that the applicants are permitted to apply by way of originating application and service of the application is to be dispensed with.

[11]   I make orders in terms of the draft orders that were provided by counsel for the applicants.

Gordon J