Francis v Hannam - [2025] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-467

[2025] NZHC 356

IN THE MATTER OF Olivado Limited (administrators appointed)

BETWEEN

BENJAMIN BRIAN FRANCIS and

GARRY CECIL WHIMP as voluntary administrators of OLIVADO LIMITED (IN VOLUNTARY ADMINISTRATION)
Applicants

AND

GARY KEITH HANNAM

First Respondent

PATRICIA JOY DRAPER
Second Respondent

HOPETOUN HOLDINGS GMBH

Third Respondent

TANLAY AG

Fourth Respondent

Hearing: On the papers

Counsel:

C Jiang and K A Mills for Applicants

Judgment:

28 February 2025

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 28 February 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:
Tompkins Wake, Auckland

FRANCIS v HANNAM [2025] NZHC 356 [28 February 2025]

[1] The administrators of Olivado Ltd (Olivado) apply in this proceeding for an interim injunction:

(a)restraining the respondents from terminating the administrators’ ongoing use of Olivado’s website and email server; and

(b)restraining the respondents from terminating Microsoft licensing services to Olivado.

[2] Olivado is a fruit processing business that processes, packages and distributes various types of oil domestically and overseas. Olivado’s commercial premises are located outside of Kerikeri.

[3] On 23 January 2025, the applicants, Mr Francis and Mr Whimp, were appointed as administrators of Olivado by a secured creditor, Seeka Ltd.

[4] On 5 February 2025, the administrators held the first creditors’ meeting and their appointment was confirmed. The watershed meeting for Olivado is scheduled to be held on 4 March 2025 at 11 am.

[5] The first and second respondents are Olivado’s directors, Gary Keith Hannam and Patricia Joy Draper. Mr Hannam is Olivado’s sole shareholder. The administrators understand that Mr Hannam and Ms Draper are husband and wife or de facto partners.

[6] The first respondent resides in Switzerland, but Ms Draper has told the administrators that Mr Hannam is currently in Kenya. The second respondent is in New Zealand, and her only known physical address is the one she has listed on the Companies Office website.

[7] The third and fourth respondent companies are registered in Switzerland, but the administrators believe they are substantively controlled by Mr Hannam. It appears to the administrators that the third respondent (Hopetoun) purports to own the “Olivado” brand and trademark. The fourth defendant (Tanlay) provides IT services to Olivado, including Microsoft 365 licences (including email access via Outlook).

[8] The administrators have been trading Olivado’s business, pending a sale of the business assets, which is currently being negotiated. Mr Hannam had previously agreed to the administrators continuing to use the Olivado trademark and branded labelling. However, on 27 February 2025, Mr Hannam sent an email to the administrators. In that email:

(a)Mr Hannam stated that the licensing arrangements in relation to use of the brand “Olivado” were terminated immediately.

(b)Mr Hannam threatened to terminate Olivado’s Microsoft 365 licences (including Outlook) on 28 February 2025 for non-payment of an invoice for the period from December to February 2025 (most of which was pre-administration…

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 Francis v Hannam

Details

AGLC: Francis v Hannam [2025] NZHC 356
Case: [2025] NZHC 356
Decision Date: 28 February 2025

CaseChat Overview and Summary

The case of Francis v Hannam involved the administrators of Olivado Ltd, Ben Francis and Garry Whimp, who sought interim injunction orders to prevent the respondents from terminating the administrators' use of Olivado's website, email server, and Microsoft licensing services. Olivado Ltd, a fruit processing business, was under voluntary administration, and its directors, Gary Hannam and Patricia Draper, along with other respondents, threatened to terminate services crucial to the ongoing operation of the company. The administrators argued that such actions would halt Olivado's business operations, jeopardise the sale of its assets, and cause significant losses to the creditors.

The legal issues before the court centred on the authority to grant interim injunctions against overseas respondents without prior service, the balance of convenience, and the potential breaches of statutory provisions related to the administration of a company under the Companies Act 1993. The administrators contended that the respondents' actions would breach contractual terms and statutory provisions, which protect the continuity of essential services during administration. The court had to determine whether there was a serious question to be tried and whether the balance of convenience favoured the administrators.

In its judgment, the court held that there was a real prospect that the New Zealand courts would exercise jurisdiction over the proceeding, considering the contractual and statutory arguments presented. The court accepted that the serious issue to be tried and the balance of convenience favoured granting the interim injunctions. It also noted that interim relief was necessary to preserve the status quo and prevent immediate harm to the company. The court declined to make orders for substituted service but directed that the respondents be given informal notice and allowed to appear on a Pickwick basis. The court granted the interim injunctions, restraining the respondents from terminating the essential services and allowing the administrators to continue operating the company during the administration period.

The final orders included injunctions to prevent the respondents from interfering with the use of Olivado's website and email server and from terminating the Microsoft 365 services. The court also directed that the matter be listed for a telephone conference on 4 March 2025 to allow the respondents to be heard, even if formal service had not yet occurred.

Orders