Byrne and Hewitt
[2024] NZHC 483
•8 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-67
[2024] NZHC 483
UNDER The Insolvency (Cross-Border) Act 2006 IN THE MATTER
of an originating application for recognition of a foreign main proceeding pursuant to section 7 and Schedule 1 of the Insolvency (Cross-border) Act 2006
IN THE MATTER
of Tamarind New Zealand Pty Limited (in Liquidation)
AND IN THE MATTER
of an application by MATTHEW JAMES BYRNE AND ANDREW STEWARD
REED HEWITT in their capacities as joint and several liquidators of Tamarind New Zealand Pty Limited (In Liquidation), an Australian company
Applicants
Hearing: On the Papers Counsel:
S Barker for Applicants
Judgment:
8 March 2024
JUDGMENT OF GRICE J
[1] Matthew James Byrnes and Andrew Stewart Reed Hewitt, who were appointed as joint and several liquidators (Liquidators) of Australian company Tamarind New Zealand Pty Limited (In Liquidation) (the Company), seek recognition of the Company's liquidation commenced on 16 April 2020 in Australia pursuant to Australia’s Corporations Act 2001 (Cth) (Australian Proceeding) as a foreign main proceeding in terms of the Insolvency (Cross-border) Act 2006 (ICBA) and relief under art 21(1)(e) of sch 1 to ICBA.
BYRNE AND HEWITT [2024] NZHC 483 [8 March 2024]
[2] The applicants seek a substantive representative order and orders dispensing with notification requirements under art 17(4) of sch 1 to IBCA.
[3] As the Liquidators are agents and representatives of the Company, this application may proceed without any requirement for formal service on the Company under r 24.56(2)(b) of the High Court Rules 2016.1
[4] Notification to the Company of any order made in respect of this application as required under art 17(4) of sch 1 to ICBA may be dispensed with.
[5]Article 22(1) of sch 1 to ICBA provides that:
In granting or denying relief under article 19 or article 21, or in modifying or terminating relief under paragraph (3) of this article, the High Court must be satisfied that the interests of the creditors and other interested persons, including the debtor, are adequately protected.
[6] I take the view that notice of this application need not be given to creditors of the Company, as the interests of creditors will be appropriately protected by reserving leave to apply to set aside or vary the orders sought within three working days of serving the sealed orders on any creditors. I also direct service of the orders on creditors listed in the annexure to this judgment.
[7]Article 17, sch 1 of IBCA provides:
Article 17. Decision to recognise a foreign proceeding
(1)Subject to article 6 [which concerns public policy], a foreign proceeding shall be recognised if:
(a) the foreign proceeding is a proceeding within the meaning of subparagraph (a) of article 2;
(b) the foreign representative applying for recognition is a person or body within the meaning of subparagraph (d) of article 2;
(c) the application meets the requirements of paragraph (2) of article 15; and
(d) the application has been submitted to the High Court.
1 Orders to that effect were previously made in Re Sheahan HC Auckland CIV-2011-404-1623, 20 May 2011.
(2)The foreign proceeding shall be recognised
(a) as a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or
(b) as a foreign non-main proceeding if the debtor has an establishment within the meaning of subparagraph (f) of article 2 in the foreign State.
(3)An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.
…
[8]The relevant terms in art 17 are defined in art 2 as follows:
(a)foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation;
(b)foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests [in the absence of proof to the contrary, the debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the centre of the debtor’s main interests];
…
(d) foreign representative means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding;
…
[9]The requirements of arts 17 and 15(3) are also satisfied in this case.
[10] The Australian Proceeding is a collective judicial proceeding in a foreign State, which arises under Australia’s Corporations Act, in which the assets and affairs of the Company are subject to control or supervision by the Australian courts for the purpose of liquidation. It therefore comes within the definition of “foreign proceeding” for the purposes of art 17(1)(a) as:
(a)The Company was put into voluntary liquidation by way of a special resolution of the Company’s members on 16 April 2020. No declaration of solvency was provided by the Company’s directors.
Hence, it is a form of creditors’ (insolvent) voluntary winding up.
(b)The affidavit of Stephen Peter Hume has demonstrated that creditors’ voluntary winding up in Australia is a collective process and must be undertaken in accordance with the Corporations Act. Liquidators appointed thereunder to realise and distribute assets and investigate the affairs of the debtor company are subject to the supervision of the Australian courts.
(c)The Court has in Sheahan recognised creditors’ voluntary liquidations of three Australian companies in Australia as foreign main proceedings.2
[11]The Liquidators are foreign representatives for the purposes of art 17(1)(b) as:
(a)they were appointed by special resolution of the Company’s members on 16 April 2020 pursuant to section 499 of the Corporations Act; and
(b)The affidavit of Stephen Peter Hume has demonstrated that the Liquidators appointed in a voluntary liquidation are authorised to administer the liquidation of the Company’s assets and affairs.
[12] The application meets the requirements of art 15(2) as prescribed under art 17(1)(c). Mr Brynes has annexed to his affidavit certified copies of:
(a)the minutes of the shareholders’ meeting that resolves the appointment of the Liquidators; and
(b)Form 505 Notification of appointment or cessation of an external administrator lodged with Australian Securities and Investments Commissions;
which fulfil the requirements of art 15(2)(a).
2 Sheahan, above n 1.
[13] The Australian Proceeding is the foreign main proceeding in terms of art 17(2)(a) as:
(a)Under art 16(3), the debtor’s registered office address is presumed to be the centre of the debtor’s main interests in the absence of proof to the contrary.
(b)Given that the Company’s registered office was and still is in Australia, it is presumed that the Company’s centre of main interests is in Australia unless there is proof to the contrary.
[14] Mr Byrnes has confirmed that there are no foreign proceedings against the Company that are known to the Liquidators.3
[15]No issues of public policy arise.
Recognition order and relief
[16] Given the requirements under arts 17 and 15(3) are satisfied as demonstrated above, counsel submits that the Australian Proceeding should be recognised as the foreign main proceeding.
[17] The liquidators also seek relief under art 21(1)(e) of sch 1 to the ICBA which provides that:
(1)Upon recognition by the High Court of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the Court may, at the request of the foreign representative, grant any appropriate relief, including:
…
(e) entrusting the administration or realisation of all or part of the debtor’s assets located in New Zealand to the foreign representative or another person designated by the Court; and
…
3 Insolvency (Cross-border) Act 2006 [ICBA], art 15(3).
[18] The Court is not constrained in the relief it may grant. It is a prerequisite to the grant of relief that it is necessary to protect the assets of the debtor or the interests of creditors.4
[19] I am satisfied that the relief sought by the Liquidators is for the purpose of protecting the Company's assets.
[20] Mathew James Byrnes in his affidavit indicates that the liquidators intend to seek directions from the High Court (Directions Application) on issues that are relevant to:
(a)the admissibility of the Ministry of Business, Innovation and Employment (MBIE)’s potential claim in the Company's liquidation; and
(b)the Crown's entitlement to set off the tax credit owed to the Company against MBIE's claim for decommission costs.
[21] Given that the Directions Application in substance affects the realisation of the Company’s assets in New Zealand, I am satisfied that the Court should entrust them to administer and realise the Company’s assets in order to protect the Company’s assets by making the directions:
(a)the be recognised as a foreign main proceeding pursuant to arts 15(1) and 17 of sch 1 to IBCA;
(b)upon the recognition of the Australian Proceeding, Liquidators be entrusted with the administration and realisation of all or part of the debtor's assets located in New Zealand pursuant to art 21(1)(e) of sch 1 to the ICBA;
(c)leave be reserved to creditors to apply to set aside or vary the orders sought within three working days of the date of the sealed orders being
4 ICBA, art 21(1).
served on any creditors (in accordance with para (f) below);
(d)service of this application be dispensed with under r 24.56(2)(b) of the High Court Rules;
(e)the requirement to notify the Company of the orders sought herein as required by art 17(4) of sch 1 to the ICBA be dispensed with;
(f)the sealed order of the Court be served on the creditors listed in sch 1 of this application; and
(g)costs of and incidental to this application for the Liquidators be paid as expenses incurred by the Liquidators in carrying out their duties as liquidators of the Company.
ANNEXURE
Creditor’s name
Registered Office / Address for service
OCP Asia (Singapore) Pte Limited
c/o Russell McVeagh, Vero Centre, 48 Shortland Street, Auckland 1140, New Zealand
Tamarind Taranaki Limited (In Receivership and Liquidation)
c/o Grant Thornton New Zealand Limited, Level 15, Grant Thornton House, 215 Lambton Quay, Wellington, 6143, New Zealand
The Crown in right of New Zealand by and through the chief executive of the Ministry of Business, Innovation and Employment
15 Stout Street, Wellington, 6011
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