Kohimarama Trust Limited (in liquidation)

[2025] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002068 [2025] NZHC 1650

UNDER  the Companies Act 1993

IN THE MATTER             of the liquidation of The Kohimarama Trust

Limited (in liquidation)

BETWEEN  DAMIEN MITCHELL GRANT and ADAM

STEVENSON BOTTERILL as liquidators of The Kohimarama Trust Limited (in

liquidation) Applicants

Hearing:                   On the papers

Appearances:           B McLeish for the Applicants Judgment:  19 June 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 19 June 2025 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Waterstone, Auckland

RE THE KOHIMARAMA TRUST LTD (IN LIQ) [2025] NZHC 1650 [19 June 2025]

Introduction

[1]                 The liquidators of The Kohimarama Trust Limited (in liquidation) (the company) have now concluded their investigations into the affairs of the company, and seek the approval of the fees charged in the management of the liquidation of the company.

[2]                 The memorandum filed by the liquidators sets out a summary of the liquidators’ fees by hours worked, staff level, and the average hourly rate, applied together with a breakdown by category of work performed.

[3]                 In addition, the memorandum attaches copies of the 15 six-monthly reports provided to creditors and shareholders as required by s 255 of the Companies Act 1993. The application for approval is made on the basis that all distributions have been made and the liquidators’ remuneration is sought, as the liquidators anticipate no further attendances required to finalise the liquidation of the company.

[4]                 The issue I have to consider is whether the Court is satisfied that the remuneration for which approval is sought reflects the fair value of services rendered by the liquidator to the creditors of the company.

[5]                 In Madsen Ries v Salis Safety Equipment Ltd (in liquidation) the Court of Appeal held:

… Even where there is no challenge to the liquidators’ remuneration, this does not absolve the Court from the obligation to be satisfied that the remuneration approved reflects the value of services rendered to the creditors of the company.

[6]                 I set out the background below before considering whether the remuneration ought to be approved.

Background

[7]The company was incorporated on 7 December 2016 as a trustee company.

[8]                 The company was placed in liquidation on 27 October 2017 by order of the Court, pursuant to s 241(2)(c) of the Companies Act 1993. Damien Grant and Steven Khov were appointed joint and several liquidators of the company.

[9]                 On 18 September 2018, Steven Khov resigned as liquidator. On 4 April 2022, Adam Botterill was appointed liquidator jointly and severally with Damien Grant.

[10]             The business of the company was trustee services, and it had a sole director, Gregory Martin Olliver. It had a sole shareholder, The Olliver Trustee Company Limited. The liquidators’ initial investigations indicate that the company was unable to pay its debts as they fell due.

[11]The liquidators admitted the following claims in the liquidation:

(a)preferential claims – one preferential claim totalling $4,237.42, being the petitioning creditor’s costs;

(b)secure claims – there are no secured claims;

(c)unsecured creditor claims – one unsecured creditor claim totalling

$24,532.96 (also being from the petitioning creditor).

[12]The liquidators have undertaken the following:

(a)investigated the affairs of the company including:

(i)made enquiries of trading banks;

(ii)liaised with the Court of Appeal to secure a refund of $6,874.68 on account of security for costs held, which were paid prior to liquidation;

(iii)prepared statutory reports.

[13]             The liquidators have investigated the affairs of the company, but have not found any assets. A bank account was identified but with the exception of a deposit of $10 does not appear to have any other transactions on it. The company does not appear to have owned any real estate.

[14]The liquidators received the following amounts in the course of the liquidation:

(a)bank account - $10;

(b)refund received from Court of Appeal for security for costs - $6,875;

(c)interest received - $2.

[15]Total realisations were $6,887.

Should the liquidators’ remuneration be approved?

[16]             The liquidators have provided a breakdown of their time records and charges, which show that the hourly rates have been applied in accordance with those generally approved by the Court.

[17]             In total the liquidators have spent 21.78 hours, at a total cost of $7,332. The liquidators have drawn down remuneration totalling $5,988.67 excluding GST ($6,886.97 including GST).

[18]             The liquidators calculate that the average hourly rate for the attendances on the liquidation by them and their firm total $74.96 exclusive of GST, which I consider is reasonable. They have employed a significant degree of delegation to junior staff members, as demonstrated by their remuneration report and breakdown of costs and fees.

[19]             In the circumstances, I am satisfied that the categories of work undertaken by the liquidators were necessary to wind up the affairs of the company, and that the remuneration for which approval is sought reflects the fair value of services rendered by the liquidators to the creditors.

Result

[20]             For the reasons set out above, the liquidators’ remuneration of $5,998.67 excluding GST ($6,886.97 including GST) is approved.

Associate Judge Cogswell