Finnigan v Butcher no.2 - [2012] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-301 [2012] NZHC 2463

IN THE MATTER OF DRAGON FLYTE FARM LIMITED (IN LIQUIDATION)

BETWEEN PERI FINNIGAN AND ROY HORROCKS
Applicants

ANDCARL DAVID GEORGE BUTCHER AND LYDIA KATE BUTCHER
Respondents

Hearing: 29 August 2012

Appearances: R Hern and K Rowe for Applicants
Carl D G Butcher in person
No appearance for Lydia Butcher
No appearance for AJ and RV Burgess
K R Shanks for original liquidators

Judgment: 21 September 2012

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

This judgment was delivered by me on 21 September 2012 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar

Solicitors:
McElroys (Richard Hern) P O Box 835 Auckland 1140, for liquidators
Email: Richard.hern@mcelroys.co.nz / Kristal.rowe@mcelroys.co.nz

Norwest City Law (R N Holdaway), Waimauku Village Centre 0812
Email: admin@norwestcitylaw.co.nz

Keegan Alexander (K R Shanks) P O Box 999 Auckland 1140, for original liquidators
Email: kshanks@keegan.co.nz

Copy for:
R V and A J Burgess, Turkey Flat Road, RD1, Te Kopuru 0391
Carl Butcher, 8 Settlers Way, RD 1 Okaihau 0475
Email: carlbutcher@xtra.co.nz

FINNIGAN AND HORROCKS V BUTCHER AND BUTCHER HC WHA CIV-2011-488-301 [21 September
2012]

[1] This decision is about two matters:

(a) the amounts of the claims of the Butchers and the Burgesses; and

(b)the validity of the appointment of the original liquidators and their entitlement, if any, to remuneration.

[2] I was not able to decide these matters in my decision of 27 April 2012.1 The background is set out in that decision and is known to the parties. It is not necessary to set it out again.

[3] The current and original liquidators filed evidence and submissions for the hearing and appeared. Mr Butcher filed submissions and appeared, but did not provide evidence. The Burgesses filed written submissions but did not appear. None of the deponents were required to appear to be cross-examined on their affidavits.

Mr Butcher’s preliminary objection

[4] Mr Butcher says that the court is interfering with a Police fraud investigation. Mr Butcher’s reference to Police investigations is not new. I have given earlier rulings that this court should continue giving decisions resolving issues in the liquidation of Dragon Flyte Farm Ltd (In Liquidation) independently of any actions that the Police might take.

[5] The court’s function in deciding questions arising in a liquidation and the role of the Police in investigating complaints and prosecuting any offending they might find in the course of their investigations, are distinct matters. Most times they can be kept separate. One need not get in the way of another. When the court gives directions in a liquidation, it applies civil law. In civil proceedings evidence is given, as in this case, by way of affidavit. The court decides the parties’ rights
according to civil law, in particular under the Companies Act 1993. The court is not

1 Finnigan v Butcher [2012] NZHC 810.

required to determine whether the parties are guilty of criminal offending. In a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2463
Decision Date: 21 September 2012

CaseChat Overview and Summary

This case concerns the liquidation of Dragon Flyte Farm Limited, a New Zealand company. The applicants, Peri Finnigan and Roy Horrocks, are the liquidators of the company. The respondents are Carl David George Butcher and Lydia Kate Butcher. The main issues in the case are the validity of the appointment of the original liquidators, the amount of the claims by the Butchers and the Burgesses, and the entitlement of the original liquidators to remuneration. The court was required to decide whether the original liquidators were validly appointed, the amounts of the claims by the Butchers and the Burgesses, and whether the original liquidators were entitled to remuneration. The court found that the original liquidators were validly appointed, the amount of the Butchers' claim was $193,120.57, and the amount of the Burgesses' claim was $460,878.13. The court also approved the remuneration of the original liquidators, which was $55,364.00 including GST and disbursements, with a deduction of $7,338.50 for legal fees. The final orders of the court were that the amount of the Butchers' claim was $193,120.57, the amount of the Burgesses' claim was $460,878.13, the special resolution of 26 February 2010 was valid and effective in appointing the original liquidators, and their remuneration was fixed at $55,364.00 including GST and disbursements, with a deduction of $7,338.50 for legal fees.

Orders