Faf Holdings Limited (in liquidation) v The Town Ball Limited
[2015] NZHC 3189
•8 December 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2015-412-000027 [2015] NZHC 3189
IN THE MATTER OF the Companies Act 1993 BETWEEN
FAF HOLDINGS LIMITED (IN LIQUIDATION)
Plaintiff
AND
THE TOWN BALL LIMITED Defendant
Hearing: 8 December 2015 Appearances:
B M Russell for Plaintiff
B L Gray for DefendantJudgment:
8 December 2015
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on liquidation application
Introduction
[1] The plaintiff seeks an order putting the defendant into liquidation.
[2] The defendant’s central proposition was encapsulated in the submissions of
its counsel, Mr Gray, in these terms:
The defendant’s position is that it is able to pay its debts and retains the
support of its sole director and shareholder, Richard John Bethune.
[3] This judgment deals with that and other matters raised by the defendant.
The history of this litigation
[4] The plaintiff was substituted for the Commissioner of Inland Revenue as the original plaintiff. The Commissioner sought the defendant’s liquidation on the basis
FAF HOLDINGS LIMITED (IN LIQUIDATION) v THE TOWN BALL LIMITED [2015] NZHC 3189 [8
December 2015]
of unmet tax liabilities. In July 2015, the defendant reached a settlement with the Commissioner and was granted leave to discontinue as plaintiff, substituted by the present plaintiff.
This plaintiff as creditor
[5] The creditor/debtor relationship between the parties arose out of a Heads of
Agreement (the Agreement) dated 1 August 2012.
[6] At that time, the defendant owned and operated The Town Ball restaurant and nightclub in Christchurch. The plaintiff provided payroll services to the defendant by paying staff salary, wages and taxes to staff employed at the defendant’s business. The Agreement provided for weekly invoicing of staff hourly rates actually paid to the staff. The Agreement went on to provide that the defendant:
… shall also reimburse FAF in respect of all administration, salaries and management fees incurred in the employment and management role referred to herein.
[7] Mr Bethune was and remains the sole director of both the plaintiff and the defendant (the plaintiff now being in liquidation). It was Mr Bethune who signed the Agreement for both the plaintiff and the defendant as the sole director of each.
[8] The plaintiff was put into liquidation by the High Court order of 11
December 2014. The liquidators thereupon interviewed relevant people, including
Mr Bethune.
[9] The liquidators concluded that the plaintiff was owed by the defendant
$538,213 on account of employee wages and tax obligations incurred under the Agreement. The sum of $538,213 represented the total of the Commissioner’s proof of debt for tax liabilities as filed in the liquidation.
[10] By a letter dated 23 February 2015, the liquidators formally demanded payment of the $538,213 from the defendant.
[11] In the absence of payment, the plaintiff (in liquidation) served a statutory demand on the defendant on 5 May 2015.
[12] The defendant did not apply to set aside the statutory demand or make payment of the sum demanded (and has not since paid any sum on account).
The issues raised by the defendant
[13] The defendant asserts:
(a) the statutory demand was invalid (for several reasons);
(b)if the demand was valid, which the defendant denies, the defendant is able to pay its debts as they fall due;
(c) there is a substantial dispute as to whether the defendant owes to the plaintiff the claimed debt of $538,213 based on its quantum; and
(d)given that an invoice was not rendered by the plaintiff to the defendant, the debt is not due for payment.
The statutory demand – identification of the debt
The content of the demand
[14] The plaintiff’s letter of 23 February 2015 (which was not served until 2
March 2015) claimed payment of the sum of $538,213 pursuant to the Agreement by which the defendant was to reimburse the plaintiff in relation to administration expenses incurred in the plaintiff’s employment and management role. In the letter, the liquidators explained that Mr Bethune himself had advised the liquidators that the defendant owed the plaintiff the amount equivalent to the plaintiff’s debt to Inland Revenue (IRD). (The defendant, through Mr Bethune, has not subsequently denied the obligation of reimbursement but rather has taken issue with factual and legal details relating to it and the quantum so far as it relates to penalty interest.) The liquidators went on to explain that the IRD had filed a claim in the plaintiff’s liquidation for the sum of $538,213.
[15] The plaintiff served its statutory demand some two months later, on 5 May
2015. The demand was much briefer in its explanation, referring to the same sum of
$538,213 but simply as “funds due to the creditor”.
[16] In the intervening six weeks, Ryna Ali, a manager of the liquidators’ recovery team, had exchanges with Mr Bethune as to the plaintiff’s debt to IRD. As a result of a discussion on 21 April 2015, Mr Bethune was to “get an offer” to Ms Ali. In his evidence he accepted that there was “a level of acknowledged indebtedness”. It has been made clear by Mr Gray in his submissions the acknowledged indebtedness relates to the core debt to IRD.
[17] Mr Bethune, in fact, did not put an offer to the liquidators before they served the statutory demand two weeks after Ms Ali’s discussion.
The defendant’s grounds of opposition
[18] For the defendant, Mr Gray submits that the statutory demand did not adequately identify the debt. He relies on Wildlife Pictures Ltd v Busch for the proposition that the statutory demand is required to adequately identify the debt so as to ensure that the company receiving the demand knows what it relates to.1
Discussion
[19] There is no basis to treat the demand as insufficiently particularised. Mr Bethune had earlier received the letter of demand for the same sum, identifying it as representing the reimbursement of the IRD debt, and had discussed the very matter with Ms Ali. When the statutory demand was received for precisely that amount, Mr Bethune could have been under no misunderstanding as to what the debt represented. This is a very different case from that dealt with by Associate Judge Bell in Wildlife Pictures Ltd v Busch where Mrs Busch, as the director of the company involved, believed the demand had something to do with filming and edit suite equipment but Mr Busch, as the person making the demand, meant it to refer to an after-tax bonus
and wages.2 In the present case, Mr Bethune’s focus was not on any need to clarify
1 Wildlife Pictures Ltd v Busch HC Whangarei CIV-2011-488-574, 18 October 2011 at [9].
2 At [6].
the nature of the claimed debt, but rather on disputing the quantum so as to achieve a settlement (of what IRD would accept) on a smaller sum. As much is indicated in Mr Gray’s written synopsis, where he recorded:
The defendant discovered the outstanding tax debt and has freely acknowledged to the plaintiff that the plaintiff has a debt to IRD and that the defendant is liable for that debt but has a genuine and substantial dispute regarding the quantum or whether that debt is due and payable by the defendant.
[20] The defendant’s ability to identify the debt at the time of service of the statutory demand is reinforced in my view by a very recent affidavit of the plaintiff’s accountant, Stuart McLauchlan. Mr McLauchlan’s financial statements for the defendant for the year ending 31 March 2015 (a date some five weeks before the statutory demand was served) identified under “Accounts payable” a debt of
$327,161 owing to the plaintiff, Mr McLauchlan having elected to include in the accounts only the core debt to IRD.
Conclusion
[21] The statutory demand was sufficiently worded to identify for the defendant the debt being pursued.
The statutory demand – the amount claimed
The amount
[22] The demand was for $538,213 representing the total amount of IRD’s proof
of debt in the plaintiff’s liquidation.
[23] Although the sum was not broken down within the statutory demand, it is common ground between the parties that it comprises a “core debt” of $347,088.24. This comprises student loan contributions, KiwiSaver employer contributions, KiwiSaver employee deductions, PAYE tax deductions, Goods and Services Tax, employer superannuation tax, employer superannuation contributions, and income tax. All these relate to the activities of the defendant in relation to which the plaintiff was essentially providing payroll services.
[24] In addition to the core debt, IRD by reason of the statutory scheme of the Tax
Administration Act 1994 had calculated penalties and interest of $190,042.15.
The defendant’s grounds of opposition
[25] Mr Gray submits that the inclusion of the latter sum (for penalties and interest) within the statutory demand constituted a defect which invalidated the demand. His written synopsis recorded:
‘Defect’ includes a material misstatement of the amount due to the creditor. The amount of $538,213 is a 33% overstatement of the alleged total outstanding tax debt of $347,088.24 once the penalties imposed by the IRD for which the defendant denies liability are deducted.
Discussion
[26] The submission for the defendant impliedly and appropriately recognises that a demand for payment of the core tax (pursuant to the plaintiff’s right to be reimbursed) would be valid. What is then incorrectly assumed is that penalties and tax are disputable. The Tax Administration Act, to the contrary, imposes an automatic accrual of penalties and interest. The Commissioner has power to consider remission but there is no evidence that she granted any remission in this case. To the contrary, the IRD proof of debt was clearly premised on there having been no remission.
Conclusion
[27] The statutory demand was not defective by reason of stating an amount which included the penalties and interest payable to the IRD.
The statutory demand – a debt due
The defendant’s ground of opposition
[28] The defendant asserts that the debt demanded, even if owing, was not due for payment because the defendant has not issued an invoice.
Discussion
[29] Mr Gray cited no authority for the proposition that the plaintiff as a matter of law was required to issue an invoice before the defendant became liable to pay the plaintiff the debt which the plaintiff had incurred to IRD on account of the liabilities listed at [23].
[30] By the Agreement, the plaintiff was to invoice the defendant on a weekly basis for the staff hourly rates actually paid to staff. But the provision for reimbursement of all administration expenses incurred in the employment and management role makes no reference to invoicing. That is not surprising. Reimbursable expenses will include disbursements as in this case in relation to tax liabilities, which carry no GST implication in terms of a service rendered by the plaintiff to the defendant. An invoice was not a pre-requisite to the plaintiff’s tax liability (which the plaintiff incurred on behalf of the defendant) becoming a debt due and owing by the defendant to the plaintiff. It became due and owing when the liability was incurred. The plaintiff was entitled to demand indemnity and/or reimbursement in the event it had been able to pay from its own sources. But the very nature of the plaintiff’s and defendant’s situations – whereby the plaintiff had no assets of its own from which to satisfy debts such as tax liabilities and was dependent on the defendant for funds - leaves no room for any suggestion that the parties to the arrangement anticipated anything other than the defendant putting the plaintiff in funds as tax liabilities arose. The plaintiff has called for the funds and invoicing is beside the point.
The defendant’s solvency
[31] The defendant, having failed to meet the statutory demand or to have it set aside, is presumed to be insolvent.3
[32] By reason of the presumption of insolvency, the defendant has the onus of establishing its solvency.4 Bald assertions carry little weight, if any, in this context.5
Independent, verified evidence will usually be needed.6
3 Companies Act 1993, s 287(a).
4 Contact Energy Ltd v Durney Land Company Ltd HC Napier CIV-2009-441-804, 11 December
The plaintiff ’s evidence
[33] I begin with the plaintiff’s evidence as to solvency, as the plaintiff in this case has not rested the allegation of insolvency on the presumption alone.
[34] First, the plaintiff relies on the evidence of admissions by the defendant and/or Mr Bethune. In Mr Bethune’s first affidavit, filed for the defendant, he deposed:
The defendant ceased trading in June 2014.
The defendant is inactive …
The defendant has settled with the original plaintiff and continues to negotiate with other creditors to put an arrangement in place to satisfy all creditors.
[35] In its statement of defence, there is a pleading in identical terms to the last sentence I have quoted from Mr Bethune’s affidavit.
[36] In a second affidavit, filed shortly before this hearing, Mr Bethune recognised that by March 2014 the plaintiff owed IRD approximately $330,000 plus penalties (there being no suggestion in the evidence that the debt did not substantially or wholly relate to the tax obligations which the plaintiff had incurred on behalf of the defendant). Mr Bethune then touched on attempts he had made to negotiate a settlement with IRD. First, in relation to IRD’s liquidation proceeding against the defendant and, secondly, the plaintiff’s debt to IRD. Mr Bethune then explained:
23.In the course of negotiating with the IRD, the in-house counsel for the commissioner alerted us to the possibility that even if TTBL was to be able to settle the outstanding monies, the commissioner may still consider prosecution of the defendants directors in any event.
24.On that basis there is no way that we would introduce funds towards a settlement when our position was left uncertain. To that end the only settlement we would fund is one of a global nature where all parties are bound in a full and final arrangement.
2009 (HC) at [7]. Commissioner of Inland Revenue v FB Duvall Ltd (2009) 24 NZTC 23, 135 (HC) at [12].
5 Commissioner of Inland Revenue v F B Duvall Ltd, above n 4, at [15].
6 At [17]; Contact Energy Ltd v Durney Land Company Ltd, above n 4, at [18]; Quantum
Holdings NZ Ltd v United Recyclers NZ Ltd HC Auckland CIV-2008-404-4564, 20 November
2008 at [23].
[37] Mr Bethune then referred to without prejudice correspondence dating from July 2015 to October 2015 in which settlement discussions occurred. I disregard that evidence because the Evidence Act, s 57 applies to it.
[38] Finally, Mr Bethune deposed that:
35.I have for the last 17 months supported TTBL in an effort to resolved matters for the creditors of TTBL and FAF. I have also personally had to pick up the loans with ANZ that the companies had taken out. I still support TTBL in an effort to maximise the return to the creditors of the companies.
36.This support will entail introducing funds to the company to satisfy its debts that would not be available in the event of TTBL being liquidated.
[39] The defendant’s pleadings and Mr Bethune’s affidavits, filed in part as recently as 3 December 2015, provide strong evidence of the defendant’s insolvency. The need for a director or shareholder to “introduce funds to satisfy debts” is, without further explanation, inconsistent with any allegation of cash-flow solvency (at least in the absence of an established commitment by external funders).
[40] Finally, the plaintiff introduced evidence of a debt of $36,846.60 owed by the defendant to Trent’s Wholesale Ltd (Trents). Ross Blackler, a manager of Trents, has exhibited a District Court judgment dated 17 February 2015. Costs and interest were also awarded but not quantified. Mr Blackler, on 20 November 2015 deposed that the judgment debt had not been paid, despite demand. When Mr Bethune swore his additional affidavit on 3 December 2015, he did not refer to Mr Blackler’s affidavit, which therefore remains unchallenged. It provides further evidence of the defendant’s inability to meet its debts as they fall due.
The defendant’s evidence
[41] I turn then to consider the evidence relied upon by the defendant in relation to its alleged solvency. (The statement of defence pleads that the defendant is not insolvent.)
[42] It is first helpful to consider Mr Gray’s submission for any content as to solvency. In the written synopsis, Mr Gray accepted that on the opposition documents first filed by the defendant, it had:
… failed to adduce verifiable evidence of solvency to rebut [the]
presumption that the defendant is unable to pay its debts.
[43] But Mr Gray then continued:
41.The defendant has simultaneously with these submissions filed and served two subsequent affidavits adducing verifiable evidence of solvency which rebut the presumption that it is unable to pay its debts. Ultimately the courts inquiry into the defendant’s solvency should focus on the its ability to pay current and undisputed debts.
42.The defendant has provided clear evidence of the background to the debt its attempts to secure same with both the IRD and the plaintiff. The IRD had in essence agreed to accept $60,000 for the alleged outstanding tax debt of $347, 088.24 being approximately 20 cents in the dollar which is generally considered a good return in a company liquidation.
43.Even after the plaintiff’s liquidator was appointed the IRD were considering selling the debt to the defendant before the liquidator took steps to ensure that did not happen.
[44] The two affidavits Mr Gray refers to in this passage are of Mr Bethune (his second affidavit) and of Mr McLauchlan, the accountant whose firm has acted for Mr Bethune and associated entities from 2001.
[45] I have already summarised and quoted Mr Bethune’s evidence in his second affidavit.
[46] Mr McLauchlan exhibited the financial statements to which I have referred for the year ending 31 March 2015. I shall return to what those show. Mr McLauchlan refers to funds introduced by Mr Bethune and explains the relevance of potential further funding:
14.The original plaintiff in these proceedings, the IRD, was satisfied some months ago along with court costs by funds introduced into the company by its director Mr Bethune.
15.Clearly if a director of a company is to introduce funds to settle a situation such as this a global settlement with the Liquidator and
IRD would be a common sense prerequisite. I am informed that the offer made to the liquidator was not accepted.
16.A company with the support of its directors and shareholders cannot be presumed to be insolvent.
17.I understand the finances of Mr Bethune and other related entities and can state that funds can be made available to TTBL if a settlement can be reached at a pragmatic level.
[47] Mr McLauchlan concludes:
The defendant company is not insolvent.
[48] In his oral submissions today, Mr Gray accepted that, unless I find that potential funding available from Mr Bethune or his interests has lifted the defendant to a position of solvency, the test of insolvency is otherwise made out.
Discussion
[49] As Mr Russell was directed, he filed a brief additional synopsis of submissions in response to the Bethune/McLauchlan evidence. I agree with Mr Russell’s characterisation of that evidence in which he says:
3.The conclusion that Messrs McLauchlan and Bethune reach in their evidence appears to be that the defendant is not insolvent as Mr Bethune can provide funds that would give creditors a greater return than if the defendant was put into liquidation.
[50] The defendant, through Mr Bethune, apparently believes that because Mr Bethune indicates that he would be prepared to fund what Mr McLauchlan described as “a pragmatic settlement” with the defendant’s creditors, the defendant is solvent. There is a factual assumption by the defendant which is unjustified on the evidence adduced. There is nothing approaching evidence of a commitment by Mr Bethune or his interests to fund a particular figure to meet the debts to all creditors. Furthermore, the appropriate person or persons to decide upon the level of compromise with creditors in the case of a company which cannot pay its debts as they fall due, when one substantial creditor (with no other creditor opposing) seeks the scrutiny and focus which comes with liquidation, is the liquidator or a Committee of creditors appointed on liquidation. For the time being, the defendant’s debts remain debts which the defendant has been unable to meet.
[51] The defendant’s own evidence, recently filed, establishes rather than disproves its insolvency.
[52] In reaching that conclusion, I therefore reject Mr McLauchlan’s statement
that “the defendant company is not insolvent”.
[53] I note that Mr McLauchlan does not purport to give evidence as a qualified independent expert. His evidence is only evidence of fact. To the extent he expresses his opinion I reject it as unqualified but also without foundation given the other evidence. The financial statements plainly establish insolvency, even as prepared (unaudited) by Mr McLauchlan. As shown in the statements, the “accounts payable” as at 31 March 2015 stood at $407,349. That figure was arrived at by Mr McLauchlan limiting his recognition of the plaintiff as a creditor to $327,161. Whether the debt to the plaintiff is recognised at what I have found to be its full level, or something less, the defendant has neither the assets nor the income from which to meet the accounts payable.
[54] Mr McLauchlan’s evidence and conclusions as to solvency appear to have been swayed by a view which he expressed that the defendant’s accrued tax losses are “very plainly worthy of every effort to retain”. The losses of course may be of value to the company and its shareholders if the defendant returns to profitability at some future date but they do not provide the defendant with any of the funds that the defendant needs to pay its creditors. The interests of Mr Bethune and any others who hold any shareholding interest in the insolvent company (the defendant) are not directly relevant to the defendant’s solvency.
[55] Mr McLauchlan’s conclusions as to the defendant’s solvency are not
supported by other evidence and I have therefore rejected them.
Overall conclusion as to indebtedness and insolvency
[56] I find that the plaintiff is a creditor of the defendant and that, by reason of the plaintiff’s right to be indemnified or reimbursed, the full debt proved by the IRD in the plaintiff’s liquidation is in turn due and owing by the defendant to the plaintiff.
[57] I further find both by reason of the presumption of insolvency and the evidence adduced that the defendant is insolvent.
[58] I find that there can be no substantial dispute on these matters.
The residual discretion
[59] Under s 241(4)(a) Companies Act, the Court retains a residual discretion by which it may refuse to order liquidation when the statutory requirements for an order are otherwise established.
[60] Mr Gray invited me, in the event I reached the conclusions I have, to find that the defendant’s cessation of trading constitutes a special reason of justice militating against liquidation. In particular, Mr Gray observed:
(a) no further debt is being incurred by the defendants;
(b)no profits are being made so that profits are not being retained or undistributed to creditors; and
(c) Mr Bethune is prepared to introduce funds “if a pragmatic settlement with all creditors has been reached”.
[61] Against this background, Mr Gray submitted that the privilege of limited liability has no particular relevance in relation to this company any longer.
[62] Mr Gray proceeded in his submissions to refer to the content of without prejudice correspondence as I had indicated. I exclude it and will not therefore refer to its detail. The thrust of Mr Gray’s submission was that the defendant ought to be preserved so that Mr Bethune can explore discussions with a view to resolving the debts owing to the defendant’s creditors. Mr Gray suggests that an unsatisfactory aspect of the conduct of the plaintiff’s liquidators is the liquidators’ failure to engage with Mr Gray on endeavours to reach a compromise of the IRD debt. He refers to indications received from the IRD that it might contemplate a settlement with Mr
Bethune, having discussed the figure of $60,000, and submits that it is the plaintiff’s and the liquidators’ attitude which has cut across progress in such negotiation.
[63] Mr Gray required Henry David Levin, one of the liquidators, for cross- examination. Mr Levin’s cross-examination did not produce information or answers which took the defendant’s case any further. In response to Mr Gray’s questions as to the liquidators’ failure to engage with Mr Bethune’s proposals, Mr Levin explained that Mr Bethune was seeking not merely a compromise and satisfaction of IRD debt but was, in return for injecting funds into the defendant, requiring a release of Mr Bethune himself from personal suit on account of any breach of directors’ duties (Mr Bethune is already a defendant in such proceedings brought by the plaintiff).
[64] On the basis of the submissions of Mr Gray which I have identified, I find this to be a case in which the interests of the creditors as a whole are strongly in favour of liquidation. Mr Bethune was the sole director of one (related) failed company and is the sole director of the defendant, which must also be regarded as failed. The creditors are entitled to place their confidence, not in Mr Bethune’s efforts to compromise the creditors but in the liquidators’ investigations and steps towards all achievable recoveries. Those investigations will include whether any recent payments made to other creditors should be clawed back. They will also include whether recovery ought to be pursued against Mr Bethune himself. The plaintiff was, after all, exposed to a very large IRD debt by some fundamental failures of management. Mr Bethune’s explanation is that the failures were the fault of a staff member. That may be substantiated in due course but Mr Bethune’s own involvement is a matter worthy of investigation.
[65] An order for liquidation is just and appropriate and in the interests of creditors and there is no reason it should be refused on the basis of the defendant’s attempts to negotiate settlement with funds potentially to be injected by Mr Bethune.
An adjournment
[66] As a final resort, Mr Gray submitted that the Court should grant an adjournment to enable the defendant to pursue the earlier unsuccessful negotiations,
either further with the plaintiff or directly with the IRD. I accept Mr Russell’s submissions that to grant an adjournment in the present circumstances, simply for the purpose of giving the defendant a further opportunity to negotiate an outcome, would be an inappropriate exercise of the residual discretion. The defendant has had a lengthy period to negotiate, initially having indicated to Ms Ali that an offer would be made, none was forthcoming. When the liquidator later asked for a statement of means in the context of Mr Bethune’s offer to inject a modest sum into the defendant, Mr Bethune flatly refused the request. It would be inappropriate to defer liquidation simply to enable Mr Bethune to put his proposals into better and potentially more acceptable shape. The plaintiff is entitled to look to the Court for a judgment today.
The identity of the liquidators
[67] This brings me to the identity of the liquidators. Vivien Judith Madsen-Ries and Henry David Levin have been nominated by the plaintiff as appropriate persons to be appointed liquidators of the defendant.
[68] Mr Gray has submitted that the Official Assignee, rather than Ms Madsen- Ries and Mr Levin, ought to be appointed liquidator. Mr Gray recorded:
… there is a very real risk of a conflict of interest between the interests of the creditors of the plaintiff and those of the creditors of the defendant company if the Court was to accept the plaintiff’s liquidators’ request.
[69] The “very real risk of conflict of interest” was not greatly developed by Mr Gray in his submissions. He did put questions to Mr Levin in order to suggest that Mr Levin and Ms Madsen-Ries, if appointed liquidators of the defendant (in addition to their appointment as liquidators of the plaintiff), might not act solely in the interests of the defendant’s creditors.
[70] Mr Levin answered Mr Gray’s questions entirely satisfactorily. He identified his experience as a liquidator. He explained what his duties would be in relation to the defendant. He recognises a synergy and efficiency in the liquidators having a role in relation to both closely-related companies. The potential efficiencies and economics for creditors are obvious.
[71] I cannot readily identify an immediate concern of the nature raised by the defendant. Rather, in relation to what is indisputably a large degree of insolvency, combined with a lack of any assets for immediate realisation, there may well be real benefits for the creditors of both plaintiff and defendant in having one set of liquidators, from a substantial organisation with their institutional knowledge already gained, proceed with investigations and further steps to recovery, in tandem.
[72] Ms Madsen-Ries and Mr Levin are well known to the Court as experienced liquidators. They know their responsibilities as officers of the Court. They will readily identify any situation in which a real conflict of interest arises and needs to be dealt with. They would then be able to obtain the Court’s direction or take other appropriate steps such as by taking the matter to a Committee of creditors.
Costs
[73] Costs must follow the event, together with disbursements. The costs should appropriately be on a Category 2B basis. The disbursements will appropriately include a certificate for counsel’s reasonable travel and accommodation costs.
Orders
[74] I order:
(a) The Town Ball Ltd is put into liquidation.
(b) The liquidators appointed are Vivienne Judith Madsen-Ries and Henry
David Levin.
(c) The liquidators’ rates of remuneration are approved in accordance with their consents dated 23 November 2015, subject to the provisions of the Companies Act 1993.
(d) The liquidators are permitted to act jointly and severally.
(e) The defendant is to pay the plaintiff’s costs of the proceeding on a 2B
basis together with disbursements to be fixed by the Registrar with a
certificate for the reasonable travel and accommodation costs of counsel.
(f) The order is timed at 4.02 pm.
Associate Judge Osborne
Solicitors:
Lane Neave, Christchurch
C P Burke, Dunedin
Counsel: B L Gray
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