Gillovic v Nayacakalou - [2024] NZHC 2496

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-216

[2024] NZHC 2496

UNDER

AND
sections 284 and 286 of the Companies Act 1993

IN THE MATTER

of the removal of liquidator and review of liquidator’s remuneration

BETWEEN

BRENT STEPHEN GILLOVIC

Plaintiff

AND

KELERA NAYACAKALOU as liquidator of TESIO BLOODSTOCK SERVICES

LIMITED (in liquidation) First Defendant

KELERA NAYACAKALOU as liquidator of TESIO THOROUGHBRED SERVICES

LIMITED (in liquidation) Second Defendant

Hearing: 18 June 2024

Appearances:

D Delic for the Plaintiff

No appearance by or for the First or Second Defendant

Judgment:

2 September 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 2 September 2024 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Braun, Bond & Lomas Limited, Hamilton

GILLOVIC v NAYACAKALOU [2024] NZHC 2496 [2 September 2024]

Introduction

[1] The plaintiff, Brent Gillovic, is the director and shareholder of two companies in liquidation, Tesio Bloodstock Services Ltd (in liq) (Tesio Bloodstock) and Tesio Thoroughbred Services Ltd (in liq) (Tesio Thoroughbred).

[2] Mr Gillovic has brought these proceedings against the liquidator appointed to both companies in May 2015, Kelera Nayacakalou, seeking orders for her removal and for her remuneration to be fixed at $3,500 plus GST for each liquidation, as Mr Gillovic says was agreed.

[3] The proceedings are brought pursuant to ss 284 and 286 of the Companies Act 1993. Mr Gillovic, in his capacity as a shareholder of the two companies in liquidation, required leave to bring his applications under s 284. Ms Nayacakalou opposed leave and also challenged Mr Gillovic’s proceeding on two further procedural bases:

(a)First, that Mr Gillovic had failed to serve the notice required by s 286(2) before removal could be ordered, submitting that the claim under s 286 was therefore a nullity.

(b)Second, that Mr Gillovic’s second cause of action, which sought to reverse the sale of shares owned by Tesio Bloodstock to a third party, Naldapat Ltd (Naldapat), should be struck out.

[4] Associate Judge Brittain, in a decision issued on 28 August 2023,1 held that Mr Gillovic’s claim under s 286 of the Act may proceed on the basis that the notice issue could be resolved at trial. His Honour held further that if the Court lacks jurisdiction to make s 286 orders, the Court may nonetheless have inherent jurisdiction to remove the liquidator relying on Commissioner of Inland Revenue v Livingspace Properties Ltd.2

1 Gillovic v Nayacakalou [2023] NZHC 2348.
2 Commissioner of Inland Revenue v Livingspace Properties Ltd [2020] NZHC 1434, [2021] 2 NZLR 252.

[5] Associate Judge Brittain struck out the second cause of action seeking reversal of the share sale to Naldapat,3 but held that leave ought to be granted in respect of the third cause of action relating to the liquidator’s remuneration.4

[6] An amended statement of claim was filed on 25 September 2025 deleting the second cause of action and a statement of…

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: [2024] NZHC 2496
Decision Date: 2 September 2024

CaseChat Overview and Summary

In this case, the plaintiff, Brent Gillovic, sought the removal of the defendant, Kelera Nayacakalou, as liquidator of two companies, Tesio Bloodstock Services Ltd and Tesio Thoroughbred Services Ltd. Gillovic also sought to fix Nayacakalou's remuneration at $3,500 plus GST per company, which he claimed was agreed upon. Nayacakalou opposed the claims and raised procedural objections. The court addressed the issues of whether Nayacakalou should be removed as liquidator and whether her remuneration should be fixed at $3,500 plus GST per liquidation. The court found that Nayacakalou should be removed due to her failure to comply with her duties, including improperly transferring company shares and not accurately reporting on the liquidations. The court also determined that Nayacakalou's remuneration should be fixed at $3,500 plus GST per liquidation, as no evidence was provided to justify a higher amount. The court ordered Nayacakalou's removal and fixed her remuneration accordingly.

Orders