Fisk v Turvey - [2023] NZHC 2182

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-136

[2023] NZHC 2182

UNDER the Companies Act 1993, the Receiverships Act 1993, the Property Law Act 2007, the Land Transfer Act 2017 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

Vey Group Limited (in liquidation)

BETWEEN

JOHN HOWARD ROSS FISK and RICHARD JOHN NACEY

First Applicants

VEY GROUP LIMITED (IN LIQUIDATION)
Second Applicant

AND

DARYN ALLEN TURVEY

First Respondent

AOKAUTERE LAND HOLDINGS LIMITED

Second Respondent

Continued…

On the Papers

Counsel:

R L Pinny for the Applicants First Respondent in person

R L Roff for the First Interested Party

Judgment:

15 August 2023

JUDGMENT OF GWYN J

(Directions pursuant to s 284 of the Companies Act 1993 by consent)

FISK and NACEY v TURVEY [2023] NZHC 2182 [15 August 2023]

… Continued

AND
DAVID VANCE and IAN MILLARD AS TRUSTEES OF THE ORANA TRUST

First Interested Party

LESLIE WILLIAM FUGLE
Second Interested Party

GREGORY JOHN SHERRIFF
Third Interested Party

AND

THE COMMISSIONER OF INLAND REVENUE

First Interested Non-Party

Introduction

[1] The liquidators of Vey Group Ltd (in liq) (Vey) (the Liquidators) have applied for directions relating to the distribution of Vey’s assets and related orders.

[2] The Liquidators, the first respondent (Daryn Turvey) and the first interested party (the Trustees of the Orana Trust) (Orana) seek directions as to the distribution of Vey’s remaining assets by consent.

Background

[3]By application dated 18 March 2022, the applicants sought orders that:

(a)the Liquidators could sell the property owned by Vey located in Webb Street, Wellington (the Property);

(b)the proceeds of sale of the Property should be applied to meet certain undisputed priority debts and costs specified in the application; and

(c)following sale of the Property and application of the proceeds as specified, the Liquidators were to:

(i)seek further directions from the Court relating to the distribution of Vey’s remaining assets, including the validity and priority of any registered interests that were discharged on settlement; and

(ii)serve that request for further directions as to distribution on all creditors of Vey (the Further Directions Request).

[4] The intention of the orders sought was to enable a two-stage approach to the distribution of Vey’s assets:

(a)First, to enable the prompt sale of the Property and payment of undisputed priority claims (Stage One).

(b)Second, to provide for a process to resolve all matters between the stakeholders relating to distribution of Vey’s remaining assets in an efficient and cost-effective way, through a single hearing at which all creditors of Vey could appear (Stage Two).

[5]The orders sought were granted in my judgment dated 27 September 2022.1

[6] The Liquidators have now sold the Property and applied the sale proceeds in the manner specified in the Court’s orders. Stage One is complete.

Directions sought as to distribution

[7]Stage Two requires directions as to distribution and related orders.

[8] The Liquidators are currently holding funds in the liquidation of Vey of just over $500,000 (the Fund).

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.

Continue reading Fisk v Turvey

Details

AGLC: Fisk v Turvey [2023] NZHC 2182
Case: [2023] NZHC 2182
Decision Date: 15 August 2023

CaseChat Overview and Summary

In the case of Fisk v Turvey, the High Court of New Zealand was tasked with providing directions regarding the distribution of assets from the liquidation of Vey Group Limited. The liquidators, along with other parties, sought orders concerning the sale of property and the subsequent distribution of proceeds, as well as the resolution of claims against the remaining assets. The central legal issue revolved around the validity of claims by various creditors and interested parties, particularly those of Mr. Turvey, and how the remaining funds should be distributed among them.

The court's analysis focused on the specific claims presented by each party and their respective priorities. Mr. Turvey's claims included both a potential institutional constructive trust over a property and a creditor claim, which were contested by the liquidators. The court needed to determine whether Mr. Turvey had a valid interest in the property and, if so, how it should be treated in the distribution process. Additionally, the court had to decide on the admissibility and priority of various creditor claims, including those of the Orana Trust, the Commissioner of Inland Revenue, and Wellington City Council.

After considering the submissions and the settlement agreement reached between the liquidators, Mr. Turvey, and the Orana Trust, the court issued directions for the distribution of the remaining funds. Mr. Turvey's claims were settled for $15,000, contingent upon the court's approval of the distribution plan. The court ruled that the liquidators should first pay Mr. Turvey the settlement amount, followed by their own fees, Inland Revenue's preferential claim, and then the remaining unsecured creditor claims on a pari passu basis. This decision provided clarity on the distribution process and allowed for an efficient resolution of the remaining claims.

Orders