Industrial and Commercial Bank of China (New Zealand) Limited v CBL Corporation Limited (in voluntary administration)

[2019] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000946

[2019] NZHC 1038

UNDER

Part 16 of the Companies Act 1993 and Part 31 of the High Court Rules

IN THE MATTER OF

an application for the liquidation of CBL Corporation Ltd

BETWEEN

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED

First Plaintiff

BANK OF CHINA (NEW ZEALAND) LIMITED

Second Plaintiff

AND

CBL CORPORATION LIMITED (IN VOLUNTARY ADMINISTRATION)

Defendant

Hearing:

13 May 2019

Appearances:

R J Hollyman QC for Plaintiffs M Kersey for Defendant

D Street for ANZ (Party to be served) J Cundy for Oceanic Securities

Judgment:

13 May 2019

ORAL JUDGMENT OF VENNING J

Solicitors:           Mayne Wetherell, Auckland

Russell McVeagh, Auckland Chapman Tripp, Auckland

Lee Salmon Long, Auckland

Counsel:S J Mills QC/R J Hollyman QC, Auckland S Hunter, Auckland

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED v CBL
CORPORATION LIMITED (IN VOLUNTARY ADMINISTRATION) [2019] NZHC 1038 [13 May 2019]

[1]    The defendant company is in voluntary administration. Section 239ABU of the Companies Act 1993 provides that a liquidator may be appointed to a company in administration by the Court on application under s 241(2)(c) of the Act. The issue for the Court then on such an application is whether the company is unable to pay its debts.

[2]    Both first and second plaintiffs are creditors of the defendant company. The evidence before the Court from the Deputy Chief Executive Officer of the first plaintiff and Assistant Chief Executive Officer of the second plaintiff confirm that demands have been made on the defendant company for significant sums of money which have not been met.

[3]    The application for liquidation was initially opposed by Oceanic Securities Pte Ltd (Oceanic). That company is the second largest shareholder of the defendant company. The liquidation was opposed on the basis of a proposed restructuring. In the event, despite the efforts by the parties behind Oceanic it has not been possible to implement the proposed restructuring. Given the evidence before the Court, the Court is satisfied that the defendant company is insolvent and unable to pay its debts. Oceanic has filed a memorandum confirming that it withdraws its opposition to the liquidation.

[4]    The application for liquidation has been advertised as required. I note the appearance of the ANZ Bank as a party to be served and also counsel for the company. No party opposes the application for the orders to be made by the Court for liquidation. On the evidence before the Court I am satisfied that as I say the company is insolvent and unable to pay its debts. The order sought is appropriate.

[5]    There will accordingly be an order placing the defendant company in liquidation. There will also be an order appointing Neale Jackson and Brendon James Gibson as joint and several liquidators of the defendant company. The liquidation order is made at 10.12 am.

Costs

[6]    The plaintiff is entitled to costs. I fix costs as sought in the sum of $12,042 together with disbursements of $1,311.67.

[7]    For the avoidance of doubt I record that previous orders of the Court for confidentiality in relation to the materials filed on the file no longer remain. Those orders are now at an end. There are no confidentiality orders extant.

Venning J