Kip Investments Limited v Patcroft Properties Limited HC Auckland CIV 2011-404-002804
[2011] NZHC 1550
•1 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-002804
UNDER Companies Act 1993
IN THE MATTER OF Section 289 of the Companies Act 1993
BETWEEN KIP INVESTMENTS LIMITED Plaintiff
ANDPATCROFT PROPERTIES LIMITED Defendant
Hearing: 1 June 2011
Appearances: D Grove for the Plaintiff
Mr O'Donnell, Director of the Defendant
Judgment: 1 June 2011
ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
Solicitors/Counsel:
D Grove, Barrister, Auckland – [email protected]
Copy to:
A McCullagh and S Lawrence, PKF Corporate Recovery & Insolvency (Auckland) Ltd –
Mr O’Donnell, Patcroft Industries Limited, 1599 State Highway 1, Wellsford
KIP INVESTMENTS LIMITED V PATCROFT PROPERTIES LIMITED HC AK CIV 2011-404-002804 1 June
2011
[1] Mr O’Donnell a director of the defendant appeared and advised that the defendant’s solicitor was overseas. Mr O’Donnell sought an adjournment of the plaintiff’s application of an interim liquidator, in order to consult with his solicitor.
[2] The plaintiff applies for the appointment of interim liquidators pursuant to s
246 of the Companies Act 1993.
[3] Issues between the parties were finally resolved by a decision of the Supreme Court dated 10 May 2011. In that outcome the Court restored to the plaintiff the judgment it obtained for damages following the unlawful termination by the defendant of the plaintiff’s business lease.
[4] Today Mr Grove has advised this Court that the judgment in favour of the plaintiff is in the vicinity of $329,000 inclusive of interest and costs.
[5] The present application for appointment of an interim liquidator has been brought in circumstances where the defendant’s only asset is likely that claim the defendant may have against its former solicitors on whose advice the defendant acted to terminate the plaintiff’s lease. Mr Grove has explained that any proceeding issues against that former solicitor has to be filed by 13 June 2011 or otherwise will be time barred.
[6] There is a risk therefore that the only asset available for enforcement of any judgment may be lost.
[7] The plaintiff has requested the defendant’s solicitors to confirm an action is to be pursued against the former solicitors. That confirmation has not been forthcoming.
Decision
[8] This Court is satisfied pursuant to s 246(1) of the Companies Act that it is necessary or expedient for the purpose of maintaining the value of the assets of the defendant to appoint interim liquidators to the defendant. Accordingly there will be
an order appointing Mr A J McCullagh and Mr S M Lawrence as interim liquidators of Patcroft Properties Limited. Approval is given to the liquidator’s chargeout rates in terms identified by the liquidator’s consent memorandum dated 13 May 2011.
[9] Pursuant to s 246(3) of the Companies Act the rights and powers of the interim liquidators shall initially be limited to the task of issuing any proceedings they consider appropriate to preserve the asset position of Patcroft Properties Limited.
[10] Leave is reserved to apply on short notice for the purpose of reviewing this order or for the purpose of reviewing the extent of the liquidator’s powers authorised by it.
[11] There is an order that the costs of and incidental to this application be costs in the liquidation.
[12] The time of the making of the order for the appointment of interim liquidators is 12:15pm.
Associate Judge Christiansen
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