Fisk v Turvey - [2022] NZHC 2462

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-136

[2022] NZHC 2462

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

BETWEEN

JOHN HOWARD ROSS FISK and

RICHARD JOHN NACEY as liquidators of Vey Group Limited (in receivership and

liquidation) First Applicants

VEY GROUP LIMITED (in receivership and liquidation)

Second Applicant

Continued…

Hearing: 5 September 2022

Appearances:

R L Pinny and J A Laing for the First and Second Applicants J K Mahuta-Coyle for the Second Respondent and the Third Interested Party

R L Roff for the Trustees of the Orana Trust, First Interested Parties

J I Taylor for Receiver of Aokautere Land Holdings Limited, Third Interested Party

Judgment:

27 September 2022

Reissued:

7 October 2022

JUDGMENT OF GWYN J

(Application for sale of mortgaged property under ss 107 & 108 Property Law Act 2007)

FISK v TURVEY [2022] NZHC 2462 [27 September 2022]

…Continued

AND
DARYN TURVEY

First Respondent

AOKAUTERE LAND HOLDINGS LIMITED

Second Respondent

AND

DAVID VANCE and IAN MILLARD as

Trustees of the Orana Trust First Interested Parties

LESLIE WILLIAM FUGLE
Second Interested Party

GREGORY JOHN SHERRIFF

Third Interested Party

TABLE OF CONTENTS

Introduction [1]

Preliminary matters [3]

Background [7]

The Property [16]

Related litigation [27]

CIV-2018-485-505 [28]

CIV-2018-454-121 [32]

CIV-2022-485-109 [37]

Summary [42]

Orders sought [43]

Issues for the Court [49]

Sections 107 & 108 Property Law Act 2007 [50]

Submissions [53]

Discussion [61]

Factors relevant to the exercise of the Court’s discretion [78]

Submissions for the Applicants [79]

Delays in administration of the liquidation  [83]
Deterioration of the Property  [89]
Prejudice to unsecured creditors  [93]

Submissions for trustees of the Orana Trust [99]

Submissions for the ALHL Receiver [108]

Discussion [113]

Result [128]

Orders [130]

Costs [139]

SCHEDULE ONE: ORDERS [140]

Introduction

[1] This is an application by Vey Group Limited (in liquidation and receivership) (the Company) and the liquidators of the Company, John Fisk and Richard Nacey (the Liquidators).

[2] The applicants seek an order to enable a mortgaged property (the major asset of the Company) to be sold, together with ancillary orders.

Preliminary matters

[3] The Liquidators sought leave to commence the proceeding by way of originating application. That was opposed by Aokautere Land Holdings Limited (ALHL) and Leslie Fugle, the director and shareholder of both ALHL and the Company. Justice Mallon granted leave for the proceeding to be commenced by originating application.1

[4] Justice Mallon also directed that the originating application be served on David Vance and Ian Millard, as trustees of the Orana Trust, and the Commissioner of Inland Revenue.

[5] Leave was also granted for a report prepared by the Court-appointed receivers dated 14 August 2020 (filed in related proceeding CIV-2021-485-505); and affidavit evidence and a report by the liquidators under s 250(3) of the Companies Act 1993 (filed in CIV-2012-485-505), to be relied on as evidence in this proceeding.

[6]…

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 [2022] NZHC 2462
Case: [2022] NZHC 2462
Decision Date: 27 September 2022

CaseChat Overview and Summary

This case involves an application by the liquidators of Vey Group Limited, a company in liquidation and receivership, seeking an order to enable the sale of a mortgaged property, which is the company's major asset. The applicants argue that the administration of the liquidation has been largely stalled by litigation initiated by Mr Fugle, the director and shareholder of the company, and that the property is deteriorating in the meantime, causing prejudice to the company's unsecured creditors and benefiting ALHL and Mr Fugle. The court considered the broad terms of sections 107 and 108 of the Property Law Act 2007, which provide for the sale of mortgaged property, and determined that the discretion to direct a sale could be exercised in this case. The court found that it was just and equitable to grant the orders sought by the applicants, taking into account the interests of all parties. The court made orders directing the sale of the property, prohibiting ALHL and any receiver appointed by ALHL from exercising any power of sale over the property for a period of six months, and prescribing how the ALHL Receiver is to apply the funds upon settlement. The court also made orders relating to the removal of certain interests registered against the title to the property and the distribution of the proceeds of sale.

Orders