Jollands v Wilson
[2015] NZHC 3309
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-815 [2015] NZHC 3309
UNDER the Companies Act 1993 section 284 IN THE MATTER OF
SILVER OAKS PROPERTY NO.2
LIMITEDBETWEEN
PETER REGINALD JOLLANDS AND CATHERINE JANE JOLLANDS Applicants
AND
GREGORY JOHN WILSON Respondent
Hearing: 8 December 2015 Appearances:
A A Lowe for Applicants
No appearance for RespondentJudgment:
18 December 2015
INTERIM JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 18 December 2015 at 4:30pm
Pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Alexandra Low & Associates, Auckland, for Applicants (Liquidators)
JOLLANDS AND JOLLANDS v WILSON [2015] NZHC 3309 [18 December 2015]
[1] The liquidators of Silver Oaks Property No.2 Ltd have applied for directions under s 284 of the Companies Act 1993 in response to a challenge to their:
(a) invoicing for their remuneration after the liquidation had been terminated under s 250 of the Companies Act, and
(b) later making a GST return from which they obtained a refund.
[2] Silver Oaks Property No.2 Ltd was ordered into liquidation on 31 January
2013 on the application of Programmed Maintenance Services NZ Ltd, a creditor. The applicants were appointed liquidators. Their rates of remuneration were approved, subject to the requirement that at the end of the liquidation they should apply to fix their overall remuneration.
[3] Shortly after the liquidation order, Mr Wilson, a director of the company, applied to have the liquidation terminated. On 20 March 2013, Associate Judge Sargisson made an order under s 250 of the Companies Act terminating the liquidation. It was a standard order of its sort. Only Programmed Maintenance Services NZ Ltd claimed in the liquidation. While Mr Wilson contested the liability of Silver Oaks Property No.2 Ltd for the debt, arrangements were made to secure the sum while other steps were taken to determine liability. It turned out that by oversight Silver Oaks Property No.2 Ltd had failed to act in time when served with a statutory demand and the liquidation application. The company appears to have been solvent throughout. It was appropriate to terminate the liquidation.
[4] For the s 250 application Mr Wilson’s lawyers contacted the liquidators about their remuneration and expenses. Mr Wilson made payments towards their remuneration. In their memorandum for the court on the application, the liquidators did not advise that there was any issue as to their remuneration. They did not oppose the termination or propose that any termination order take effect only on a later date. The order terminating the liquidation seems to have been made on the assumption that satisfactory arrangements were in hand to pay the liquidators for their work.
[5] On 22 March 2013, the liquidators advised the Registrar of Companies that the liquidation had come to an end. On 31 March 2013 they invoiced the company for their work in the administration. They charged $26,244, exclusive of GST and disbursements. All up, with GST and disbursements their charges came to
$33,564.40. Receipts during the liquidation came to $27,839.80, leaving a shortfall of $5,724.60. In September, their lawyers sent them a further bill for $2,756.68 increasing the shortfall to $8,481.28.
[6] A GST return was due on 7 May 2013. The liquidators filed it on 3 May in the name of the company. On 8 May they received a refund of $4,620.14 which they applied to reduce the shortfall.
[7] Later Mr Wilson complained to the liquidators’ professional body about the steps taken after the order terminating the liquidation. The professional body has investigated and started a disciplinary process against Mr Jollands. To answer the complaint the liquidators have applied for these declarations:
(a) That they could prepare, lodge and/or accept responsibility for filing a GST return for the company in respect of a period that included a number of days after the liquidation of the company was terminated; and
(b)That they had authority to receive and retain a GST refund arising from the GST return when that refund was received by them after the liquidation had been terminated.
A procedural concern
[8] The liquidators served the application on their professional body, but it took no formal steps. In my minute of 4 September 2015 I expressed misgivings as to the professional body being a party. It did not have standing under s 284 of the Companies Act. It is not part of the court’s function under s 284 of the Companies Act to make rulings for the purpose of disciplinary enquiries by professional bodies for insolvency practitioners. I was concerned that the court was being asked to give
some form of advisory opinion, rather than to determine a matter actually in issue under s 284. It seemed that the matter could be made a more regular application under s 284 if a respondent with standing were joined. I made an order joining Mr Wilson as respondent, given that he was a director of the company, had made the application under s 250 of the Companies Act and had made the complaint to the professional body. As he had an interest in the correctness of the liquidators’ conduct, he would have the opportunity to take part in the proceeding. That did not work. On 23 September 2015, Mr Wilson emailed the Registrar, advising that he had been served, but that he did not wish to take any steps. He does not agree with the liquidators’ position.
[9] While there is no formal opposition, a decision on the liquidators’ application has a purpose. A finding against them may require them to repay the company. I have heard the matter as an unopposed application. Ms Lowe set out in her written submissions the argument which she understands would be brought against the liquidators.
Approving the liquidators’ remuneration
[10] The liquidators did not apply for an order approving their overall remuneration as required in the liquidation order of 31 January 2013. Unless the court orders otherwise under s 276(2), the liquidators’ remuneration will be limited to the amounts or the rates allowed under s 277 of the Companies Act.1 Those are the amounts and rates fixed under the Companies Act 1993 Liquidation Amendment Regulations 2007. They are significantly below what the liquidators are claiming in
this liquidation. Before this matter can be finally determined, their remuneration needs to be fixed under s 276(2) and s 284(1)(e).
[11] The liquidators have put in evidence their billing report, which shows time records and charges for each step taken in the liquidation. There is no issue as to the rates. After all, the court approved them when it made the liquidation order. I am not, however, in a position to determine their reasonable remuneration without
further evidence and hearing from the liquidators. One issue I require to be
1 Companies Act 1993 s 276(2).
addressed is whether all the steps charged for were reasonably required, given that this was a relatively short liquidation terminated after only some seven weeks.
[12] The hearing is accordingly adjourned to 16 February 2016 for a half day, to hear further evidence and submissions as to the amount of remuneration.
[13] I deal with the questions in the application on the provisional assumption that the liquidators will be able to justify the remuneration they have charged. This is accordingly an interim decision. Further directions may be required if the remuneration claimed is found to be excessive.
What happens in a standard liquidation
[14] On court-ordered liquidations, a liquidation starts when the court appoints the liquidator.2 On being appointed, liquidators assume custody and control of the company’s assets.3 They become agents of the company.4 While directors remain in office they cease to have powers, functions and duties other than those required or permitted to be exercised under Part 16 of the Companies Act.5 Liquidators are entitled to be paid their reasonable remuneration in carrying out their duties and exercising their powers as liquidators.6 Their expenses and remuneration are payable out of the assets of the company.7 After completing their duties, liquidators report to creditors and send copies to the Registrar of Companies.8 When the requirements of s 257 have been met, the liquidation is completed9 and the liquidator ceases to hold office.10 By the stage of final reporting, liquidators will have charged for all their work in the liquidation, have obtained any orders required to approve their
remuneration, and will have made all appropriate returns to the Commissioner of
Inland Revenue. The liquidators will have recovered their remuneration out of the assets of the company. With distributions completed, there will be no assets left.
2 Section 241(5).
3 Section 248(1)(a).
4 Re Silver Valley Mines Ltd (1882) 21 Ch D 381, Heath and Whale Insolvency Law in New
Zealand, LexisNexis, on-line version, 22.3
5 Section 248(1)(b).
6 Section 276.
7 Section 278.
8 Section 257(1).
9 Section 249.
10 Section 279.
Following completion of the liquidation, the registrar will remove the company from the register so that it ceases to exist.11 Barring cases where the company is restored to the register,12 the end of a liquidation is final. There is no transition leading to the company coming under the control of some other person.
[15] Liquidators may come under responsibilities in the Goods and Services Tax Act 1985. Under s 58 of that act, when a company is registered for GST, the liquidator becomes a “specified agent”. The liquidator is treated as a registered person carrying on the taxable activity of the company. That lasts during the “agency period”. Section 58 says:
58 Personal representative, liquidator, receiver, etc
(1) In this section and sections 46 and 55 —
agency period means the period beginning on the date on which a person becomes entitled to act as a specified agent carrying on a taxable activity in relation to an incapacitated person and ending on the earlier of—
(a) the date on which some person other than the incapacitated person or the specified agent is registered in respect of the taxable activity; or
(b) the date on which there is no longer a person acting as a specified agent in relation to the incapacitated person
incapacitated person means a registered person who dies, or goes into liquidation or receivership, or becomes bankrupt or incapacitated
specified agent means a person carrying on any taxable activity in a capacity as personal representative, liquidator, or receiver of an incapacitated person, or otherwise as agent for or on behalf of or in the stead of an incapacitated person.
(1A) Despite sections 5(2) and 60, a person who becomes a specified agent is treated as being a registered person carrying on the taxable activity of the incapacitated person during the agency period, and the incapacitated person is not treated as carrying on the taxable activity during the period.
(1B) If a person becomes a specified agent and has been appointed to carry on part of the incapacitated person’s taxable activity only, subsection (1A) applies only to the part of the taxable activity the person has been appointed to carry on.
11 Sections 317, 318(1)(e) and 320(2).
12 Section 328(1)(c), 329(1)(a)(iii) and 330.
(1C) Subject to section 46(7), a specified agent may deduct an amount under section 20(3) relating to supplies made before the agency period if the incapacitated person is entitled to, and has not previously deducted, the amount.
(1D) A specified agent is not personally liable for any liabilities incurred under this Act by the incapacitated person on or before the date the agency period starts.
(2) Where a mortgagee is in possession of any land or other property previously mortgaged by the mortgagor, being a registered person, the Commissioner may, from the date on which the mortgagee took possession of that land or other property, until such time as the mortgagee ceases to be in possession of that land or other property, deem the mortgagee, in any case where and to the extent that the mortgagee carries on any taxable activity of the mortgagor, to be a registered person.
(3) Any person who becomes a specified agent, or who as a mortgagee in possession carries on any taxable activity of the mortgagor, shall, within 21 days of becoming a specified agent or commencing that taxable activity of the mortgagor, inform the Commissioner in writing of that fact and of the date of the death or of the liquidation or receivership or bankruptcy or mortgagee taking possession of any land or other property previously mortgaged by the mortgagor, or of the nature of the incapacity and the date on which it began.
[16] In Stiassny v Commissioner of Inland Revenue the Supreme Court said this about the section:13
The effect of s 58 is that where someone is acting as an agent, including as a receiver, of an incapacitated person, and is carrying on the taxable activity of the incapacitated person, that agent is to be treated as personally carrying on the taxable activity whilst entitled to act as agent and until ceasing to act as such or until a third party becomes registered in respect of the taxable activity. During the agency period the incapacitated person is not to be treated as carrying on the taxable activity. Those who act in circumstances which make them specified agents under s 58 can be anticipated under ordinary agency principles to be entitled to have recourse to the assets of their principal by way of indemnity and to an equitable lien arising as a matter of law to afford them a security.
[17] In an ordinary liquidation, as part of the final wash-up, the liquidator will give notice to the Commissioner of Inland Revenue that all taxable activities have
come to an end so that registration under the Goods and Services Tax Act can be
13 Stiassny v Commissioner of Inland Revenue [2012] NZSC 106, [2013] 1 NZLR 453 at [18].
cancelled.14 The agency period will then come to an end under the second limb of
the definition of “agency period” in s 58(1).
Termination under s 250 of the Companies Act
[18] On an application to terminate a liquidation under s 250 of the Companies
Act, the court is typically concerned with three matters:
(a) Whether the creditors have been paid in full or satisfactory provision has been made for them to be paid or they have consented;
(b) The liquidators’ costs have been paid or secured; and
(c) The shareholders have given their consent or would be in no worse position than if the liquidation had continued to its conclusion.15
[19] As to (b), in Re Calgary and Edmonton Land Company Ltd16 Megarry J said, referring to the English legislation:
By section 309, all costs, charges and expenses properly incurred in the winding up, including the liquidators’ remuneration, are made payable out of the assets of the company in priority to all other claims. Where a liquidator has accepted office on this footing, I cannot see that in normal circumstances it would be right to stay the winding-up unless his special position had been fully safeguarded, either by paying him the proper amount of his expenses or by sufficiently securing payment. A liquidator who loses control of the assets by reason of a stay ought normally to be properly safeguarded in relation to his expenses.
[20] Under s 250(6) of the Companies Act, where the court makes an order terminating the liquidation of the company, the company ceases to be in liquidation and the liquidator ceases to hold office with effect on and from the making of the order or such other date as may be specified in the order. In addition, under s 250(4), the court may make such other order as it thinks fit in connection with the
termination of the liquidation.
14 Section 52(3).
15 Re Bell Block Lumber Ltd (In Liq) 6 NZCLC 67,690 (HC).
16 Re Calgary and Edmonton Land Company Ltd [1975] 1 All ER 146 (EWHC) at 1051.
[21] On termination, liquidators no longer have custody and control of the company’s assets. They no longer need to carry out their duties under s 253 to protect, realise and distribute assets to creditors. The directors, who have remained in office throughout, assume the powers, functions and duties they had before liquidation.
[22] A termination order under s 250 operates prospectively only. The termination order does not undo the original order putting the company into liquidation and, barring any specific order under s 250(4), does not set aside anything that has been carried out during the liquidation, does not discharge any liabilities that have been incurred, and does not adjust any interest in property that has been acquired or disposed of during the liquidation.
[23] Subject to the court’s power to review their remuneration under ss 276(2) and
284(1)(b) of the Companies Act, liquidators are entitled to their remuneration for the administration of the liquidation up until termination under s 250. That is, after all, reflected in the court’s concern on applications under s 250 to ensure that liquidators are paid for their work in the administering the liquidation.
[24] On any commonsense view, not all the liquidators’ functions come to an end the moment the court pronounces a termination order. There will always be some wash-up and hand-over required: notify the Registrar of Companies of the end of the liquidation, deliver files and records to the directors of the company, pay company funds held in the liquidators’ trust account to a company account, arrange a change of registered office, notify the Inland Revenue of the end of the agency period under s 58 of the Goods and Services Tax Act and the like. Those matters are properly part of a liquidator’s duties and exercise of powers. The liquidator is entitled to remuneration for them under s 276 of the Companies Act.
[25] Aside from such finishing off work, liquidators may have to complete tasks started during the liquidation. Under s 256 accounts and records must be kept. A liquidator could not be excused from preparing accounts for transactions during the liquidation because of an order under s 250. More difficult is the question of completing transactions started before a termination order. Under partnership law,
transactions begun but not finished before dissolution may be completed.17 Outside partnerships the position in agency law generally is not clear-cut, but Bowstead & Reynolds on Agency recognises that agents can discharge matters in respect of which they have incurred personal liabilities.18
The argument against the liquidators
[26] As earlier indicated, Ms Lowe outlined what she understood to be the challenge to the liquidators’ actions. In summary the argument runs as follows. As the liquidators notified the Companies Office of the termination of the liquidation on
22 March 2013, that is the latest point at which they were acting as liquidators. Their authority to control the affairs of the company ended then. The agency period under s 58 of the Goods and Services Act stopped. The company was no longer an incapacitated person, but carried on its own taxable activity. The liquidators did not issue an invoice for their work in the liquidation until 31 March 2013 and included in that invoice charges for work after the order under s 250. Until it was invoiced, the company was not entitled to any input tax deduction or credit associated with the liquidators’ invoice of 31 March 2013. Between 23 March and 31 March 2013, the taxable activities of the company were not the responsibility of the liquidators. The liquidators are not responsible for GST on any taxable supplies made by the company in that period. Despite the fact that their responsibility for the taxable activities of the company had come to an end, the liquidators made a GST return for a taxable period that included the time after 22 March 2013, lodged it with the Inland Revenue, and obtained the refund of $4,620.14. The refund arose from receipt of the liquidators’ invoice of 31 March 2013, not from anything that occurred before. Given that the liquidation had terminated, and that the agency period under s 58 of the GST Act had come to an end, the liquidators had no authority to render the invoice for their remuneration, to lodge the GST return and to receive the refund.
[27] The challenge acknowledges that if the liquidators had invoiced for their remuneration before the termination of the liquidation, there would be no complaint.
17 Partnership Act 1908, s 41.
18 Peter Watts and FMB Reynolds (eds) Bowstead & Reynolds on Agency 20th ed, (Sweet & Maxwell, London, 2014) at [10-011].
[28] The argument goes to the liquidators’ authority. It is more than an attack on how they managed the liquidation and the transition. In challenges to management decisions, the court usually interferes only in the case of fraud, lack of bona fide exercise of a discretion or unreasonableness.19 No doubt the liquidators would recognise now that they could have managed matters differently, for example by invoicing the company for all their work, including wash-up work, before the s 250
order was made. But that is not the point. Instead, the complaint is that the liquidators had no authority after 22 March 2013 to invoice the company, file the GST return and collect the refund.
Invoicing for remuneration on 31 March 2013
[29] There can be no dispute as to the liquidators’ entitlement to remuneration for their work in administering the liquidation. That includes any wash-up work after the s 250 order. They must therefore be entitled to invoice the company for their services. An invoice is no more than a list of goods or services supplied with a statement of the price owing for them. Their right to be paid for their work accrued while they were liquidators: they did not lose it under the s 250 order. As a matter of management and good practice, it may have been better to invoice the company before the order under s 250, but the liquidators were entitled to be paid, even if they put the invoice through afterwards.
Making GST return in May 2013
[30] As for the GST aspects, the liquidators point out that the supply of services took place during the taxable period ending 31 March 2013. Their evidence shows that before the order under s 250 the company had received payments which were deposited into the liquidators’ trust account.20 The liquidators paid themselves from those funds.21 I accept their submission that supply took place at the time of
payment under s 9(1) of the Goods and Services Act:
19 Re Callis: Callis v Partington (1996) 7 NZCLC 261,211 (CA) and Commissioner of Inland
Revenue v Hulst (2000) 8 NZCLC 262, 266 (HC).
20 Payments were made on 13, 14, 15 February and 6 March 2013.
21 They took payments on 14, 18 February, 4 and 12 March 2013. There were further payments after the s 250 order on 27 March and 10 May 2013.
Time of supply
(1) Subject to this Act, for the purposes of this Act a supply of goods and services shall be deemed to take place at the earlier of the time an invoice is issued by the supplier or the recipient or the time any payment is received by the supplier, in respect of that supply.
(Emphasis added)
[31] Under s 6(2):
Anything done in connection with the beginning or ending, including a premature ending, of a taxable activity is treated as being carried out in the course or furtherance of the taxable activity.
The liquidators’ services in administering the liquidation were in connection with the ending of a taxable activity and thereby enabled the furtherance of the company’s taxable activity under this section.
[32] The company had two-monthly taxable periods under s 15(1)(b). A taxable period ends on the last day of a month.22 As specified agents under s 58, the liquidators were required to calculate the amount of tax payable by the company23 and to make returns to the Commissioner setting out the amount of tax payable by the company for the taxable period.24 In calculating the tax payable, the liquidators were required to deduct from the amount of output tax for that taxable period input tax for supplies to the company during the taxable period.25 To be able to claim input tax, the liquidators as specified agents under s 58 had to hold tax invoices.26
Under the act, an invoice is a document notifying an obligation to make payment.27
The liquidators as registered suppliers of services could require the company to provide a tax invoice under s 24 of the Goods and Services Tax Act. If the total amount that may be deducted for input tax credits under s 20(3) exceeded the output
tax for the same taxable period, the Commissioner was required to refund the excess
22 Goods and Services Tax Act, s 15E(1). There is an exception in the case of liquidation, when the date of liquidation is the end of the period: s 15E(3) and (4). There is no exception for the termination of a liquidation under s 250 of the Companies Act.
23 Goods and Services Tax Act, s 20(1).
24 Section 16(1).
25 Section 20(3).
26 Section 20(2).
27 Section 2(1).
to the company.28 The liquidators were required to notify the Commissioner of a change of status, including that the company was no longer in liquidation.29 As registered persons, they were required to inform the Commissioner if they ceased to carry on all taxable activities.30
[33] The effect of this is that under s 58(1A) as specified agents the liquidators were treated as registered persons and had personal responsibilities under the Goods and Services Tax Act. Under general agency principles, the end of the liquidation did not discharge those responsibilities. They were still required to meet their obligations as registered persons even though the agency period under s 58 had expired. They could not use the order under s 250 of the Companies Act as a reason for not providing tax invoices, calculating GST and making returns for the taxable period ending 31 March 2015. They accordingly were authorised to make the GST return in May 2013 for the company.
[34] The challenge notes that after the termination of the liquidation there was a period, a number of days, when the company would have resumed its normal taxable activities out of liquidation. It takes the point that, as the agency period under s 58 expired with the end of the incapacity, the liquidators had no authority to make any GST return for the taxable activity of the company, once it had come out of liquidation. It claims therefore that because of this period of taxable activity outside the agency period under s 58 the liquidators could not make a GST return for that period.
[35] The Goods and Services Tax Act does not expressly address the question of an agency period under s 58 expiring ahead of the end of a taxable period under s 15E.31 Even so, for part of the taxable period, in fact most of it, the liquidators are treated as registered persons and were required to meet the responsibilities of a registered person for that taxable period. They cannot escape the requirements to calculate GST and make returns, because the agency period ended before the taxable
period. I would expect that in most cases pragmatic arrangements could be made to
28 Section 20(5).
29 Section 53.
30 Section 52(3).
31 See n 22 above.
ensure that returns made to the Commissioner covered an entire taxable period, even if part of it were outside the agency period under s 58. But even if common sense were to fly out the window, it could not sensibly be claimed that liquidators acted without authority if they made sure that they filed returns to cover their agency period under s 58.
[36] In summary because of their responsibilities under the Goods and Services Tax Act the liquidators had authority to send the tax invoice on 31 March 2013 and to file the GST return of 3 May 2013.
The liquidators’ receipt of the refund
[37] On 8 May 2013 the Inland Revenue paid the refund out to the company c/o the liquidators, who applied the funds to reduce the shortfall in their remuneration.
[38] Before they received the refund, the liquidators were a creditor of the company for $5,724.60. The liquidators were entitled to be paid out of the assets of the company. At the time they received the refund, the liquidators no longer had control and custody of the assets of the company. They were no longer liquidators.
[39] No doubt during the liquidation, while the liquidators had custody and control of the assets of the company, the liquidators could have recourse to the assets of the company to pay their remuneration relying on s 278 of the Companies Act. The question is whether that ability to have recourse for the assets of the company is lost, once the liquidation is terminated.
[40] A similar question arose in Mellor v Mellor.32 That was a case of remuneration of a receiver appointed by the court. The receivership had been discharged by consent. The receiver was held entitled to recover his costs and remuneration, out of assets subject to the receivership, not just those in his possession. That right was not extinguished by the discharge of the receivership and the return of the assets to the company. The receiver was held to have a lien over the
assets which existed independently of actual possession or a right to possession of
32 Mellor v Mellor [1992] 1 WLR 517 (Ch).
the assets. It was recognised that a receiver has a lien The significance of the judgment is that the lien was held to be more than a possessory lien:33
In my judgment, there is no conceptual difficulty in the concept of a lien existing independently of actual possession or continuing right to possession of the assets. It is indeed a characteristic common to, if not the hallmark of, most forms of equitable lien: see Snell’s Equity (29th edition) (1990) at 469. I see no reason in principle why the receiver’s lien should not have this characteristic. It follows that, in my judgment, the receiver is entitled to an order declaratory of his lien over the assets which were subject to the receivership.
[41] An equitable lien is a form of charge. It does not depend on possession. For reasons similar to those given in Mellor v Mellor, there is no reason why a liquidator’s ability to have recourse to assets of the company to pay his remuneration, relying on s 278 of the Companies Act, should not survive an order under s 250 of the Companies Act. Section 278 does not need to be read down to prevent liquidators having recourse to the assets of the company after the liquidation has terminated. That ability to have recourse to the assets is recognised by an equitable lien of the same sort as was recognised in Mellor v Mellor. This is not an equitable lien for the purpose of indemnity, such as was referred to in Stiassny v
Commissioner of Inland Revenue34 but to secure the right of remuneration.
[42] The alternative to recognising such an equitable lien is to leave the liquidators as unsecured creditors of the company. Given the policy reasons behind safeguarding the liquidators’ right to remuneration, as seen in Re Calgary and Edmonton Land Company,35 it would be inappropriate to subject the liquidator to a credit risk as unsecured creditor. Accordingly, by reason of the equitable lien, the liquidators were entitled to use the GST refund to reduce the amount owing to them for their remuneration.
Outcome
[43] In summary the response to the challenge to the liquidators’ actions is:
33 At 527.
34 Stiassny v Commissioner of Inland Revenue, n 5.
35 Re Edmonton and Calgary Land Company, n 11.
(a) The end of the liquidation under s 250 of the Companies Act did not deprive the liquidators of their right to remuneration.
(b)Under general law and under the Goods and Services Tax Act, the liquidators were entitled to invoice for their work after the end of the liquidation.
(c) The liquidators were required to carry out work to finish off administration of the liquidation after the termination order and were entitled to charge for and be paid for that work from the assets of the company.
(d)Their invoice of 31 March 2013 was for taxable supplies for which they were paid during the agency period under s 58 of Goods and Services Tax Act, so that the company was entitled to an input tax credit for that invoice in that period.
(e) The fact that the agency period under s 58 expired before the end of the taxable period did not relieve the liquidators from their responsibilities as registered persons to make returns for the taxable period ending 31 March 2013.
(f) Because of their equitable lien, the liquidators did not lose their right to have recourse to the assets of the company under s 278 of the Companies Act to be paid their remuneration and expenses.
[44] Accordingly I make the declarations sought by the liquidators, but in doing so note that further directions may be required depending on the review of the liquidators’ remuneration.
…………………………………..
Associate Judge R M Bell