Evergreen Modular Limited (administrators appointed)
[2024] NZHC 1147
•9 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1027
[2024] NZHC 1147
UNDER Part 19 of the High Court Rules 2016 and Sections 239Y, 239ADK and 239ADO of the Companies Act 1993 IN THE MATTERS OF
EVERGREEN MODULAR LIMITED
(administrators appointed)
BUILD PARTNERS LIMITED
(administrators appointed)RICHARDSON ROAD LIMITED
(administrators appointed)PROPERTY PARTNERS LIMITED
(administrators appointed)AND
an application by STEPHEN SPEERS
KEEN and MALCOLM RUSSELL MOORE
Administrators
Hearing: On the papers Counsel:
A R MacDuff and S J Jones for Administrators
Judgment:
9 May 2024
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 9 May 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors:
Russell McVeagh, Auckland
Re EVERGREEN MODULAR LIMITED (administrators appointed) [2024] NZHC 1147 [9 May 2024]
Overview
[1] This is an application by the Administrators, Stephen Keen and Russell Moore, who have been appointed to four companies:
(a)Evergreen Modular Ltd (administrators appointed) (Evergreen);
(b)Build Partners Ltd (administrators appointed) (BPL);
(c)Richardson Road Ltd (administrators appointed) (RRL) and, together with Evergreen and BPL, the “Initial Administration Companies”; and
(d) Property Partners Ltd (administrators appointed) (PPL), (together, the “Administration Companies”).
[2]The Administrators apply for orders to the following effect:
(a)An order under s 239ADO of the Companies Act 1993 (the Act) that any liability arising out of a drawdown under the Amended Facility Agreement will constitute a debt incurred in the performance and exercise of the administrators’ functions and granting an order excluding their personal liability for those debts (the Funding Order).
(b)Orders under s 239ADK of the Act exempting the Administrators from rental and other personal liability under certain leases and hire agreements.
(c)Ancillary orders, including for this application to be determined without notice, and for notices required to be given during the course of administration to be provided informally rather than requiring personal service.
[3] An administration is intended to be a relatively short-term measure that freezes the company’s financial position while the administrator and the creditors determine the company’s future. After taking control of the company, the administrators investigate the company’s affairs and form an opinion as to whether it would be in its creditors’ interests for:1
(a)the company to enter into a deed of company arrangement (DOCA); or
(b)the administration to end; or
(c)a liquidator to be appointed.
[4] The present orders are sought in the wider context of the directors’ intention to pursue a restructure under an intended DOCA, which would require creditor approval at a watershed meeting.
Factual background
[5] The Administrators were appointed to the Administration Companies by directors’ resolutions passed on 2 May 2024 for the Initial Administration Companies, and on 3 May 2024 for PPL. On 3 May 2024, the Administrators filed the present application, along with a memorandum in support and a supporting affidavit of Mr Keen.
[6]The application is made with urgency because:
(a)the Administrators are personally liable for rent and other payments for premises occupied by Evergreen, BPL and RRL (the Initial Administration Companies), as from 10 May 2024. Rather than being faced with seeking orders retrospectively, the Administrators wish to understand their exposure to personal liability as soon as possible; and
1 Cargill International SA v Solid Energy New Zealand Ltd [2016] NZHC 1817 at [14].
(b)RRL, which is currently undertaking a large development at Richardson Road, Owairaka, is not able to continue trading or fund the administration without the Court making the Funding Order sought at [2](a) above.
The Group’s business and financial position
[7] Property Partners Group (the Group) is an integrated group of companies operating in the construction and property development industry. It develops apartment and townhouse projects utilising pre-built modules constructed within the Group, including projects developed for or in conjunction with Kāinga Ora.
[8]The Group comprises:
(a)Evergreen, which constructs modules, the majority of which are for intercompany sale to other members of the Group for use in their projects;
(b)BPL, the Group’s main trading company, which acts as head contractor on the Group’s construction projects;
(c)various project development companies, including RRL, which is developing three six-storey apartment buildings with 108 two-bedroom apartments at Richardson Road, Owairaka (Richardson Road Project), constructed from off-site manufactured timber volumetric modules constructed by Evergreen;
(d)PPL, which operates the Group’s head office, holds the head office lease, and employs head office personnel; and
(e)various other companies that are not currently in voluntary administration (or any other form of insolvency procedure), including:
(i)Property Partners Group Holdings Ltd (Holdings), a holding company that owns all or substantially all of the shares in other members of the Group;
(ii)Oxygen Architecture Ltd (Oxygen), which operates an architecture and design business, including to support the projects undertaken by the Group; and
(iii)various dormant and non-trading entities.
Leases
[9] Evergreen holds two leases for the warehouse units at Wiri, Auckland where its modular factory is located (Leases). One is a sublease and includes a yard area where Evergreen stores completed modules.
[10] The total monthly rent and outgoings payable under the Leases is approximately $76,000.
Hire Agreements
[11] The Initial Administration Companies (in particular, BPL) are party to many subcontracts entered into in respect of the Richardson Road Project and other developments.
[12] The Administrators are aware that some of these subcontracts involve third parties making available to the Initial Administration Companies equipment and other personal property (Hire Agreements) such as a crane and scaffolding, with significant regular payments due under those agreements.
[13] The combined monthly cost to BPL of the crane and scaffolding currently on the Richardson Road Project site is approximately $190,000.
Employees
[14] Three of the Initial Administration Companies currently have employees: Evergreen has 35 employees; BPL has eight employees; and PPL has three employees.
[15] The Administrators intend to retain these employees through the administration period because their ongoing employment is essential to the viability of the business following any restructuring.
[16] The Administration Companies made a number of staff redundant shortly before the Administrators’ appointment. The entitlements of those employee creditors (preferential and non-preferential) will be determined according to statutory priorities.
Assets and liabilities
[17] The Administrators have undertaken a preliminary assessment of the asset and liability position of the Initial Administration Companies, as set out below:
Assets Liabilities Evergreen $2.35 m $11.7 m BPL $3.75 m $9.99 m RRL $1.33 m (plus the value of the Richardson Road Project) $50.37 m (of which approximately
$40 m is secured and owed to 1769 Funding Ltd)
Total $7.43 m (plus the value of the Richardson Road Project) $72.06 m
Restructuring proposal
[18] The Richardson Road Project is primarily funded by 1769 Funding Ltd, which has so far advanced approximately $40 million to RRL out of a total commitment of approximately $53 million. The loan is guaranteed by the directors of RRL and is secured against all of RRL’s present and after acquired personal property, all proceeds arising from that property, and RRL’s shares.
[19] Preserving the ability for RRL to restart work on the Richardson Road Project after the administration is critical to the viability of a restructuring of the Administration Companies’ balance sheets and the potential availability of funding to secure a better return for creditors generally than an immediate liquidation of any or all of the Administration Companies.
[20] Although the Administrators have been appointed only recently, they had pre-appointment knowledge because they were engaged to review the financial position of the Group, monitor the affairs of the Group, and consider potential options. As such, upon appointment they were already aware that the directors of the administration companies have formed the view that the preferable outcome in these administrations would be a restructuring process undertaken via a DOCA. The directors intend to propose a DOCA, which in due course will need to be voted on by creditors at a watershed meeting.2
[21] The current intention would be that the Administration Companies are “mothballed” while the restructuring is pursued, but all existing employees would be retained during that time because this is essential to the viability of the business following any restructure. The costs of retaining current employees and meeting rental payments through the initial part of the administration needs funding. The proposal is that this is provided by the existing lender, 1769 Funding Ltd.
Funding order
Factual position
[22] Based on the analysis undertaken by the Administrators, they estimate that RRL has assets of approximately $1,330,000 (plus the value of the partially completed Richardson Road Project) and liabilities of approximately $50,370,000.
2 Companies Act 1993, s 239ABA.
[23] The directors are negotiating a further funding package with 1769 Funding Ltd which, if agreement can be reached, would enable RRL to complete the Richardson Road Project and provide funds for the restructuring proposal that will be the subject of a DOCA.
[24] However, as an interim measure, 1769 Funding Ltd has agreed to make available a further $800,000 drawing pursuant to an amendment to its existing facility with RRL (Amended Facility). That amending document was signed on 2 May 2024. This funding is intended to cover the initial two weeks of the administration, provide additional cash to neutralise (or offset) the impact of advisory costs already incurred and paid in the lead-up to the appointment of the Administrators (the pre-administration advisory costs), and to put the Initial Administration companies into a position where, if the further funding package can be agreed, the proposed restructuring can be pursued. That Amended Facility is conditional on court orders being granted no later than 5 pm on 10 May 2024. It also requires that the personal liability of the Administrators be limited to the value of the available assets of RRL.
Legal principles
[25] Under s 239ADH of the Act, if a company in administration borrows to fund ongoing trade, the administrator is personally liable for the borrowing.
[26]Section 239ADH provides:
239ADH Administrator liable for general debts
(1) The administrator is liable for debts that he or she incurs in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for—
(a)the purpose of funding the company; or
(b)any services rendered; or
(c)any goods bought; or
(d)any property hired, leased, or occupied.
(2) Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator’s rights against the company or anyone else.
[27] The purpose of the administrator’s personal liability is to encourage creditors to continue dealing with the company in administration.3 It also encourages the administrator to resolve the company’s financial problems rapidly.4
[28] In turn, the administrator has an indemnity from the company’s assets for this personal liability,5 which is secured by a statutory lien.6 However, if the company’s assets are insufficient to meet the administrator’s personal liability, then the administrator would be required to satisfy their personal liability from their own assets.
[29] An administrator may seek orders under s 239ADO of the Act to limit their personal liability to the company’s available assets.
[30]Section 239ADO of the Act provides:
239ADO Court’s general power
(1) The court may make any order that it thinks appropriate about how this Part [Part 15A] is to operate in relation to a particular company.
…
[31] The overriding principle for s 239ADO is that the Court should exercise this power to ensure that the objectives of pt 15A are maintained in the case of a particular company.7 Those objectives are outlined in s 239A of the Act which provides:
239A Objects of this Part
The objects of this Part are to provide for the business, property, and affairs of an insolvent company, or a company that may in the future become insolvent, to be administered in a way that—
(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or
3 Stephen Revill and Robyn Merrett (eds) Insolvency Law (online ed, Thomson Reuters) at [CA 239ADH.02].
4 At [CA 239ADH.02].
5 Companies Act, subs 239ADL(a).
6 Section 239ADN.
7 Re EncoreFX (NZ) Ltd [2020] NZHC 674 at [8].
(b) if it is not possible for the company or its business to continue in existence, results in a better return for the company’s creditors and shareholders than would result from an immediate liquidation of the company.
[32] Orders under s 239ADO to limit an administrator’s personal liability to a company’s available assets have been made on a number of occasions in New Zealand, as well as in Australia under the equivalent Australian provisions.
(a)In Re Jackson, companies in administration borrowed funds under an overdraft with ANZ Bank to fund the administration.8
(b)In Re Ruapehu Alpine Lifts Ltd, a company in administration borrowed funds under a facility with ANZ Bank and Crown Regional Holdings Ltd to continue trading and to develop a restructuring proposal.9
(c)The approach taken in these cases is consistent with Australian authorities made under equivalent statutory provisions.10
[33] In Cargill International SA v Solid Energy New Zealand Ltd, the Court upheld the validity of DOCA terms limiting the liability of the administrators:11
Depriving insolvency practitioners of the ability to negotiate and agree reasonable limitations of their liability in highly complex corporate rescue situations would likely undermine the ability to secure the appointment of high calibre and experienced professionals to relevant roles. This would risk undermining the utility of the Part 15A regime. Indeed, the evidence before me was that liability clauses similar to those in the DOCA are fairly standard in New Zealand deeds of company arrangement.
[34] Pre-appointment work is not unusual in the corporate insolvency context. Indeed, it has been recognised that such prior knowledge and experience can provide an important efficiency advantage, to the benefit of all creditors.12 However, payment
8 Re Jackson [2018] NZHC 368 at [28(d)].
9 Re Ruapehu Alpine Lifts Ltd [2022] NZHC 3077 at [19(a)].
10 Crutchfield’s Voluntary Administration (online ed, Thomson Reuters) at [30.443A.20]; Re Fletcher Jones and Staff Pty Ltd; Ex parte Secatore (admins apptd) [2011] FCA 1493 at [23]; and Re Unlockd Ltd (admins apptd) [2018] VSC 345 at [61].
11 Cargill International SA v Solid Energy New Zealand Ltd, above n 1, at [79]. At [78], the Court noted that this did not extend to compromising creditors’ pre-administration claims.
12 At [102], referencing Icon Digital Entertainment Ltd v Westpac New Zealand Ltd HC Auckland CIV-2007-404-7124, 20 November 2007 at [19]; Re Madagascar (No 1) 2013 Ltd [2014] NZHC
or non-payment of pre-administration advisory costs can give rise to potential conflicts of interest or preference issues,13 and questions whether pre-administration costs should be approved for payment in the administration, even though the work was conducted prior to appointment.14
Application to facts
[35] In this case, the potential difficulties concerning pre-administration advisory costs do not particularly arise from the Funding Order, because the Amended Facility will be used (in part) to replenish funds already used to meet such expenses. The Funding Order is aimed at placing RRL back in funds for the purposes of the upcoming phase (to the benefit of creditors) and at excluding the Administrators’ personal liability for new drawdowns on the Amended Facility for those purposes. The Funding Order is not intended to change any pre-administration entitlements.
[36] I am satisfied that entry into the Amended Facility is in the interests of RRL’s creditors and consistent with the objectives of pt 15A of the Act. In particular, the Amended Facility:
(a)is the way in which new funds are to be introduced to provide initial funding for the administration and preserve the option of restructuring, which is for the benefit of the secured and unsecured creditors;
(b)provides a window for the directors and 1769 Funding Ltd to engage, with the assistance of the Administrators, and seek to agree terms for further funding for the restructuring to be proposed under a DOCA; and
385 at [27]; Lam Soon Australia Pty Ltd (admin apptd) v Molit (No 55) Pty Ltd (1996) 22 ACSR 169 (FCA) at 184; Pavlakis v Equmen Pty Ltd (No 2) [2014] FCA 951 at [21]; Commonwealth v Irving (1996) 65 FCR 291 (FCA) at 296; and Re Rapson Holdings Ltd HC Auckland CIV-2010-404-2319, 26 April 2010.
13 Australian Securities and Investments Commission v Jones [2023] WASCA 130.
14 Such pre-appointment work prima facie falls outside the scope of the Companies Act, s 239O (the administrator is entitled to charge reasonable remuneration “for carrying out his or her duties and exercising his or her powers as administrator”) and ss 239ADL and 239ADM (priority of the administrator’s right to indemnity for liability incurred “in the due performance of his or her duties”). Before express provisions were included in the Insolvency (England and Wales) Rules to authorise payment of pre-appointment invoices, the principles were discussed in Re Johnson Machine and Tool Co Ltd [2010] EWHC 582 (Ch), referencing Re Kayley Vending Ltd [2009] EWHC 904 (Ch).
(c)preserves the prospect that the Administration Companies might emerge from administration with healthier balance sheets, a viable business going forward, and their going concerns preserved.
[37] I am also satisfied that there is no prejudice to RRL’s creditors from making the requested funding order:
(a)1769 Funding Ltd is aware that the Administrators are making this application and it has already agreed to the Amended Facility, conditional on the Court making the requested Funding Order and orders limiting the Administrators’ personal liability; and
(b)there is no prejudice to RRL’s unsecured creditors because they only stand to benefit. Without the Funding Order, the option of restructuring will effectively be lost and there will be little or no returns to unsecured creditors given their existing asset and liability positions.
[38] Finally, other creditors will be notified of these orders once granted, and leave is reserved for them to apply to vary the order (as occurred in Re Ruapehu Alpine Lifts Ltd15). It is simply not feasible to provide the other creditors with notice and to hear from them before funds are to be drawn down on or after 10 May 2024.
Leases and hired property
Factual position
[39] As stated above, Evergreen holds two leases for adjoining warehouse units from which it operates the modular factory. The leased premises include a yard area used to store completed modules. The Administrators understand that the current monthly rent and outgoings under those leases is approximately $76,000.
[40] BCL is a party to various subcontracts in relation to the Richardson Road property. Some of the subcontracts involve third parties providing equipment such as cranes and scaffolding to BPL. The Administrators understand that the combined
15 Re Ruapehu Alpine Lifts Ltd, above n 9, at [25].
monthly cost to BPL of the crane and scaffolding on the Richardson Road Project site is approximately $190,000.
[41] The Administrators apply for an order exempting them from personal liability for rent and other payments becoming due under the leases and any hire agreements.
Legal principles
[42] One of the key features of an administration is a moratorium preventing proceedings against the company, other than with consent of the administrator or leave of Court, and preventing other forms of execution and the enforcement of rights by owners and lessors of property, with certain exceptions.16 The purpose is:17
… to provide a breathing space free from creditor enforcement steps and proceedings, during which the administrator can assess and investigate the company’s situation, continue to run the business if appropriate, and put together a proposal for the company’s future, which will be usually take the form of a DOCA.
[43] The counterparties affected by the moratorium are protected to some extent under s 239ADI of the Act, because an administrator is personally liable for rent and other payments under agreements made before the administration began that relate to the use, possession, or occupation of property by the company, from the period beginning more than seven days after the date of appointment.
[44] However, under s 239ADK, the Court may exempt an administrator from personal liability for rent and other payments covered by s 239ADI. The Court has made orders under s 239ADK on another occasion.18 This followed similar decisions under equivalent Australian legislation.19
16 Companies Act, ss 239ABD, 239ABE and 239ABG.
17 Paul Heath and Michael Whale (eds) Heath and Whale on Insolvency (online ed, LexisNexis) at [17.6].
18 Re New Ezibuy Ltd [2023] NZHC 1015 at [37(f)].
19 McCallum, Re TM Lewin Australia Pty Ltd (admins apptd) [2020] FCA 992; Wells Fargo Trust Co, National Association (trustee) v VB Leaseco Pty Ltd (admins apptd) [2020] FCA 1269 at [169]; and Silvia v Fea Carbon Pty Ltd [2010] FCA 515, (2010) 185 FCR 301 at [14].
[45] I accept that the mischief at which the provisions are directed is to prevent a corporation under the control of an administrator deriving benefit from leased and hired property without paying for it.
Application to facts
[46] I am satisfied that there are proper grounds for making the orders sought in respect of the lease and hire property, given that this will be on terms that allow any counterparties to apply to vary or set aside the orders:
(a)the Administrators are unwilling to incur personal liability if the exemption is not granted but they have assessed that it is nevertheless in the best interests of creditors for the orders to be made so that the DOCA proposal may be pursued;
(b)the Administrators intend for rent to continue to be paid for all known arrangements while the Initial Administration Companies continue to use, possess, and occupy the leased premises and hired property during the administration. The purpose of the Funding Order is to enable these payments to be made. Given such ongoing payments, the lessors and hire counterparties will not be significantly disadvantaged;
(c)the Administrators suggest that the lessors and hired equipment counterparties would not be better off seeking to terminate the leases, or to recover and redeploy their assets, given the administrative costs of doing so and any unpaid amounts constituting unsecured claims;
(d)if they do take such a position, then they have the ability to apply to vary or set aside the orders; and
(e)it is difficult for the Administrators to assess all the liabilities in this category within the statutory timeframes and seek to negotiate or renegotiate with all of the counterparties.
Ancillary orders
[47] I accept that urgency requires the application to be determined without notice, because there is insufficient time to serve all relevant persons and provide the opportunity for a hearing before key statutory deadlines arise. Determining the application without notice has been granted in many similar situations, when proceeding on notice would cause considerable expense, prejudice, and undue delay.20
Notice orders
[48] Documents required to be provided to creditors must be served in accordance with s 391 of the Act. While s 391 permits service by email on creditors who are companies, there is no similar permission in relation to creditors who are natural persons (except where electronic communication is requested by the creditor).21
[49] As stated above, s 239ADO(1) of the Act allows the Court to make “any order that it thinks appropriate about how [pt 15A] is to operate in relation to a particular company”. That section has been used by this Court to authorise the giving of notices and other documents under pt 15A to creditors electronically.
(a)In Re Ruapehu Alpine Lifts Ltd, the Court identified various factual considerations that supported the orders sought, including the excessive cost and administrative burden, the absence of available postal addresses and it being consistent with the objective of administering the business, affairs, and property of the company in administration in an efficient way.22
(b)In Re New Ezibuy Ltd, the Court was satisfied that the orders sought in relation to electronic notice were appropriate.23
20 Re Postie Plus Group Ltd [2014] NZHC 1337 at [12]–[15]; Re New Ezibuy Ltd, above n 18, at [36]; and Re Ruapehu Alpine Lifts Ltd, above n 9, at [17].
21 Companies Act, subss 391(1)–(2) and subs 388(1)(d).
22 Re Ruapehu Alpine Lifts Ltd [2022] NZHC 2738 at [27] and [29].
23 Re New Ezibuy Ltd [2023] NZHC 753 at [4].
[50] The Administrators are seeking the Notice Orders, to enable them to give any notice required to be sent pursuant to pt 15A of the Act by:
(a)email, where an email address has been provided to the Administration Companies; or
(b)if an email address has not been provided to the Administration Companies, by post to the postal address that has been provided to the Administration Companies; and
(c)posted to Grant Thornton’s website ( am satisfied that the Notice Orders sought in the application:
(a)are intended to save time and cost, which will positively impact the position of creditors;
(b)increase the prospect that notices are received by the appropriate person, with the intention that creditor engagement in the administration is enhanced;
(c)are consistent with the objective of administering the business, affairs, and property of the company in administration in an efficient way; and
(d)are consistent with Re Ruapehu Alpine Lifts Ltd and Re New Ezibuy Ltd.
Meeting orders
[52] The Act provides for certain provisions of sch 5 of the Act to apply to creditors’ meetings of companies in administration. It does not, however, include cl 1(b) of sch 5, which allows for meetings by audio or audio-visual communication.
[53] Section 239ADO(1) of the Act has been used to make orders about how creditors meetings are to be held.
(a)In Re EncoreFX (NZ) Ltd, the Court held that allowing a creditors’ meeting to be convened by means of audio, or audio-visual, communication was consistent with the objectives of the Act and would allow effective participation by creditors.24
(b)In Re New Ezibuy Ltd, the Court held that allowing creditors’ meetings to be convened by audio/audio-visual communication was aligned with the purpose of the voluntary administration regime.25
[54] I accept the Administrators’ assessment that it is in the best interests of creditors for the Administrators to hold meetings by means of audio, or audio and visual, communication (in addition to providing the option for creditors to attend a meeting in person) by which all creditors participating can attend and simultaneously hear each other throughout the meeting because:
(a)it should increase access to those meetings for creditors (including employees), given the Administrators’ understanding that some significant creditors are not in Auckland; and
(b)it is likely to reduce costs of hosting meetings in a variety of locations around New Zealand.
Result
[55] For the above reasons, I am satisfied that the orders sought in the application are appropriate, as set out below.
[56] As stated in those orders, leave is reserved to any person who can demonstrate a sufficient interest in the administration of the Administration Companies to apply (on notice) to vary or set aside the orders.
O’Gorman J
24 Re EncoreFX (NZ) Ltd, above n 7, at [19].
25 Re New Ezibuy Ltd, above n 23, at [4(c)].
Orders
[1] The Administrators are granted leave to commence these proceedings without notice.
Exemption of liability for borrowing to fund the administration
[2] Under s 239ADO of the Companies Act 1993 (the Act), pt 15A operates in relation to the Administrators as if s 239ADH of the Act provides that:
(a)any liability incurred by the Administrators arising out of a drawdown under the Amended Facility Agreement between RRL (as borrower) and 1769 Funding Ltd (as lender) (Funder) originally dated 3 February 2023 and amended on 2 May 2024 (Amended Facility) is in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of RRL; and
(b)notwithstanding that the liabilities in para [2](a) above are debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of RRL, the Administrators’ personal liability for such debts (whether in contract, tort or otherwise) is limited to the value of the available assets of RRL and the indemnities to which the Administrators have available in relation to their liability, except to the extent agreed under the A&R Facility.
Exemption of liability for rent and other payments
[3] The Administrators be exempted from liability, under s 239ADK of the Act, arising:
(a)under any:
(i)leases of real property that the Initial Administration Companies have entered into (Leases), including the Leases identified in the Schedule; and
(ii)agreements relating to the use, possession or occupation of any personal property that the Initial Administration Companies have entered into (Hire Agreements), including the Hire Agreements identified in the Schedule; and
(b)during the period that the Initial Administration Companies continue to use or occupy or be in possession of property under the Leases (whether current or expired) or Hire Agreements whether before or after the date of these orders being made.
Ancillary orders
[4] Pursuant to s 239ADO of the Act, the relevant provisions of pt 15A of the Act are to operate in respect of the Administration Companies such that:
(a)any notice required to be sent pursuant to pt 15A of the Act has been and will be validly sent using the following methods (Notice Orders):
(i)email, where an email address has been provided to the Administration Companies; or
(ii)if an email address has not been provided to the Administration Companies, by post to the postal address that has been provided to the Administration Companies; and
(iii)posted to Grant Thornton's website ( meetings of creditors may be held by means of audio, or audio and visual, communication by which all creditors participating can simultaneously hear each other throughout the meeting;
(c)any postal voting conducted in accordance with cl 7 of sch 5 of the Act may also be conducted in whole or in part by way of email or other electronic means; and
(d)any documents required to be tabled at a meeting of creditors of the Administration Companies may be posted on Grant Thornton’s website or sent to known creditors by email.
[5] Leave is reserved for any person who can demonstrate a sufficient interest in the administration of the Administration Companies to apply (on notice) to vary or set aside these orders.
[6] Leave is reserved to the Administrators to apply further in respect of any modifications or ancillary issues arising out of the orders made.
[7] Notice of this application and a copy of the orders made shall be served on all creditors and employees of the Administration Companies and owners or lessors of any property that is subject to a Lease and that is used, occupied or in possession of the Initial Administration Companies (Relevant Persons), by the Administrators:
(a)writing to known Relevant Persons as soon as practicable in the manner provided for in the Notice Orders; and
(b)providing copies of the application and orders (if they have been granted), for inspection at the first creditors’ meeting; and
[8] The Administrators’ costs of and incidental to this application be expenses incurred in the administration of the Administration Companies.
Schedule – Leases and Hire Agreements
Leases
Lease Lessee Lessor 1. Agreement to Lease commencing
1 November 2021
Evergreen Modular Ltd Dalgety Drive LP 2. Deed of Lease dated 13 September 2021 Evergreen Modular Ltd Emmerson Transport Ltd Hire Agreements
Hire Agreement Lessee Owner / Lessor 3. Subcontract Agreement No. 1066/710 Build Partners Ltd Hercules Cranes and Rigging NZ 4. Subcontract Agreement No. 1066/761 dated
12 June 2023
Build Partners Ltd Affordable Scaffolding Ltd
2
18
1