Norrie v Sutich - [2013] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2847 [2013] NZHC 2495

UNDER Companies Act 1993

IN THE MATTER OF of an application under s 266 for the Production of Documents and Examination Orders re Pakiri Investments Limited (in Liquidation)

BETWEEN MARK HECTOR NORRIE AND PATRICIA VAN DER WENDE as Joint & Several Liquidators of PAKIRI INVESTMENTS LIMITED (IN LIQUIDATION) of Greenpark Rd, Penrose, Auckland
Applicants

ANDIGOR SUTICH of 148 Quay Street, Penthouse 3, Auckland Company Director First Respondent

LARRIE NEWMAN Second Respondent
RAJENDRAN RAVIKULAN Third Respondent
EVAN JAMES READ Fourth Respondent
ARRON GLYN JUDSON Fifth Respondent
CONTINUED OVERLEAF

NORRIE AND ANOR as Joint & Several Liquidators of PAKIRI INVESTMENTS LIMITED (IN LIQUIDATION) v SUTICH [2013] NZHC 2495 [24 September 2013]

CIV-2013-404-003305

IN THE MATTER of an application under s 295

BETWEEN MARK HECTOR NORRIE AND PATRICIA VAN DER WENDE as Joint & Several Liquidators of PAKIRI INVESTMENTS LIMITED (IN LIQUIDATION) of Greenpark Rd, Penrose, Auckland
Applicant

ANDTIME3 GLOBAL LIMITED Respondent

Hearing: 29 August 2013

Appearances: Mr M H Norrie - Liquidator in person for Applicants in both proceedings
Mr R B Hucker for Respondents in both proceedings
Mr R B Hucker for fourth defendant (appearing under protest) Judgment: 24 September 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
24.09.13 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Background

[1] Pakiri Investments Limited was placed in liquidation by the High Court at Auckland on 15 February 2013. The applicants were appointed liquidators. The liquidators have taken steps to acquaint themselves with the business which the liquidated company carried on. They say that the directors have not assisted them in the way that they are obliged to.

[2] The liquidators have taken steps to set aside what they consider were insolvent transactions involving the company. One of those transactions involved Time 3 Global Limited. It is alleged that the transaction involved the transfer of all assets of Pakiri to Time 3 Global Limited from 18 June 2012 onwards as part of what was described as a “restructure arrangement” by directors of the company, including MrEvan Read, a former director of the company and now a bankrupt.

[3] No steps were taken to oppose the notice that was served on Time 3 pursuant to s 292 of the Companies Act 1993 and the liquidators thereafter filed a notice of originating application for orders under s 295 of the Companies Act requiring Time
3 to pay to Pakiri the sum of US $120,000,000.

[4] Briefly, the background to the issuing of the voidable transaction notice was as follows. In a letter which Mr Read wrote to interested parties in his capacity of a majority shareholder of Pakiri, reference was made to a “company profile” which accompanied the letter. In the profile, Pakiri was described as a New Zealand registered company that had developed and owned the intellectual property and proprietary rights to various software components.

[5] However,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norrie v Sutich

Details

AGLC: Norrie v Sutich [2013] NZHC 2495
Case: [2013] NZHC 2495
Decision Date: 24 September 2013

CaseChat Overview and Summary

The case of Norrie and Ano v Sutich and Others involved an application for orders under the Companies Act 1993 to require the respondents to produce documents and be examined on oath. The applicants were liquidators of Pakiri Investments Limited, a company that had been placed in liquidation. The respondents were directors, shareholders, and a former director of the company. The liquidators sought the orders to assist them in their investigation of the company's affairs and to determine whether there were any available actions that could be pursued for the benefit of the creditors and shareholders. The issues before the court were whether the liquidators had demonstrated that the orders sought were justified, what specific documents or classes of documents were to be produced, whether the court could make an order directing production of documents in the absence of evidence that the documents were in the custody or control of the respondents, and whether the orders should be declined on discretionary grounds. The court found that the liquidators had a legitimate interest in investigating the circumstances that led to the company's collapse and that the orders sought were justified. The court also found that the liquidators were not required to specify in advance the very documents that they hoped to find by exercising their powers under the Act. The court ordered that the respondents attend before the court to be examined on oath and produce any books, records, or documents relating to the business, accounts, or affairs of the company in their possession or under their control.

Orders