Fisk v Mahoney HC Wellington CIV-2010-485-2518

[2011] NZHC 835

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2518

UNDER  Sections 292, 293 and 294 of the

Companies Act 1993

BETWEEN  JOHN HOWARD FISK AND CRAIG ALEXANDER SANSON

Plaintiffs

ANDDAVID LAURENCE MAHONEY First Defendant

ANDMICHAEL DAVID MAHONEY AND TRACEY LEE MAHONEY

Second Defendants

Hearing:         1 June 2011

(Heard at Wellington)

Counsel:         R.J. Gordon - Counsel for Plaintiffs

R.C. Laurenson - Counsel for Defendants

Judgment:      1 June 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Buddle Findlay, Solicitors, PO Box 2694, Wellington

Harkness Law Limited, Solicitors, PO Box 342, Wellington

JH FISK AND CA SANSON V DL MAHONEY HC WN CIV-2010-485-2518 1 June 2011

Introduction

[1]      Before  the  Court  are  applications  by  the  plaintiffs  first  to  set-aside  a transaction said to be an insolvent transaction involving the first defendant and secondly to set-aside a charge said to be a voidable charge involving the second defendants.

[2]      The plaintiffs are the liquidators of Jouer Money Limited (in liq) which company was placed into liquidation by order of this Court on 23 November 2009.

[3]      Having considered submissions from counsel for the plaintiffs and counsel for the defendants and having considered the present applications before the Court, the defendants’ Notice of Opposition and all supporting material I am satisfied that the applications by the plaintiffs should be granted.

[4]      That said the following orders are now made:

(a)      An order is now made setting aside the subject transaction in this proceeding between the first defendant, David  Laurence Mahoney and Jouer Money Limited (in liq) being a payment of $177,399.76 made by Jouer Money Limited to the first defendant, David Laurence Mahoney (out of the proceeds of the sale of Jouer Money Limited’s property at 314 Queens Drive, Lyall Bay, Wellington) on or about 15

May 2009.

(b)A further  order  is  made  that  the  first  defendant,  David  Laurence Mahoney, is to pay to Jouer Money Limited (in liq) a sum equal to the sum that Jouer Money Limited (in liq) paid to him under the transaction in question namely $177,399.76 within 5 working days of today, that is by 8 June 2011.

(c)       The first defendant, David Laurence Mahoney, is also to pay to Jouer

Money Limited (in liq) interest on the said sum of $177,399.76 from

the date of the transaction being 15 May 2009 up to the date of actual payment by him of this sum at the prescribed rate of 8.4% per annum pursuant to s 87(1) Judicature Act 1908.

(d)In addition, an order is now made setting aside the subject charge in this proceeding between the second defendants, Michael David Mahoney and Tracey Lee Mahoney and Jouer Money Limited (in liq) being the security interest referred to in the financing statement numbered FR6V29X1MH920286 registered on the Personal Property Security Register on Monday, 23 November 2009 at 9.45 am and asserted to be a charge in favour of the second defendants over all present and after acquired personal property of Jouer Money Limited (in liq).

(e)      In addition, costs on a Category 2B basis together with disbursements as approved by the Registrar are awarded to the plaintiffs with respect to the present applications against the first defendant and the second defendants.

[5]      My detailed reasons for this decision will follow.

‘Associate Judge D.I. Gendall’