Hodgkinson

[2023] NZHC 753

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-16

[2023] NZHC 753

UNDER

sections 239ADO and 239ADR of the Companies Act 1993 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

NEW EZIBUY LIMITED, EZIBUY CUSTODIAN LIMITED, EZIBUY HOLDINGS LIMITED, EZIBUY OPERATIONS LIMITED, LAST STOP

SHOP LIMITED AND SARA APPAREL LIMITED (ALL IN VOLUNTARY ADMINISTRATION)

AND

an application by DAMIEN MARK HODGKINSON AND KATHERINE ELIZABETH BARNET

Hearing:	On the papers
Counsel:	M Kersey and A A Duff for the Applicants
Minute:	5 April 2023

JUDGMENT OF PALMER J

Solicitors

Russell McVeagh, Auckland

HODGKINSON AND BARNET [2023] NZHC 753 [5 April 2023]

What happened?

[1]                 The applicants, Mr Damien Hodgkinson and Ms Katherine Barnet, are Australian-based insolvency practitioners. On 3 April 2023, they were appointed as voluntary administrators of a group of companies: New Ezibuy Ltd; Ezibuy Custodian Ltd; Ezibuy Holdings Ltd; Ezibuy Ltd; Ezibuy Operations Ltd; Last Stop Shop Ltd; and Sara Apparel Ltd (the Ezibuy Group). The Ezibuy Group operates out of store, office, and retail premises in a variety of centres across New Zealand and has approximately 211 employees. It is part of a larger fashion retailer group with the ultimate holding company, Mosaic Brands Ltd, in Australia.

[2]                 There are around 408 trade, landlord, employee, and secured creditors of the Ezibuy Group, spread across New Zealand, China, India, Bangladesh, and other countries. Creditors of the Ezibuy Group are owed approximately NZD 101 million. The Ezibury Group holds mostly email address details for many of the creditors.

[3]                 The administrators are required to hold the first creditors’ meeting within eight working days of appointment. It is scheduled for Friday 14 April 2023. Section 239AO(1)(a) of the Companies Act 1993 (the Act) requires written notice to be given to creditors no less than five working days before the first creditors’ meeting.

Orders

[4]                 On 4 April 2023, the applicants sought orders regarding the procedure for commencing proceedings, giving notice of the first creditors’ meeting of the Ezibuy Group, and the way in which such creditors’ meetings are held. I granted the orders sought, for the reasons reflected in this judgment, under ss 239ADO(1) and 239ADR of the Act. The orders are:

(a)I grant the applicants’ leave to commence these proceedings without notice.

(b)The applicants are permitted to send any notices to creditors required to be sent under Part 15A of the Act by:

(i)email, where an email address has been provided to any of the companies in the Ezibuy Group; or

(ii)by post to the postal address that has been provided to any of the companies in the Ezibuy Group, if a creditor has not provided an email address to any of the companies in the Ezibuy Group.

(c)The first creditors’ meeting, scheduled to take place on 14 April 2023, required under s 239AN of the Act, may be held by means of audio, or audio and visual, communication by which all creditors participating can simultaneously hear each other throughout the meeting.

(d)Any subsequent meetings of the creditors of Ezibuy Group may be held by means of audio, or audio and visual, communication by which all creditors participating can simultaneously hear each other throughout the meeting.

(e)I reserve leave to any creditor of Ezibuy Group to apply to vary set aside these orders.

(f)Notice of the application for these orders, and a copy of these orders, shall be served on all creditors of the companies in the Ezibuy Group by:

(i)writing to all known creditors as soon as practicable; and

(ii)posting a copy of the application and orders on Olvera Advisors’ website.

[5]                 These orders are made for the purpose of achieving an outcome that accords with the overall objectives of the voluntary administration regime.1 They help to facilitate creditors’ effective consideration of the issues they face in a timely fashion.2

Palmer J

1      Re Pumpkin Patch Ltd [2-16] NZHC 2771 at [25].

2      See Ruapehu Alpine Lifts Ltd [2022] NZHC 2738; Re Encorefx NZ Ltd [2020] NZHC 674.