Ott v Holt
[2024] NZHC 3832
•13 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2024-404-002358
[2024] NZHC 3832
IN THE MATTER OF Section 174 of the Companies Act 1993 IN THE MATTER OF
GOLD CRESCENT (NZ) LIMITED
BETWEEN
GEORGINA MARLENE OTT
Plaintiff
AND
STEPHEN HOLT
Defendant
Hearing: 14 November 2024 Appearances:
D Grove for the Plaintiff C Jiang for the Defendant
Judgment:
13 December 2024
JUDGMENT OF TAHANA J
[Reasons]
This judgment was delivered by me on 13 December 2024 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Foy & Halse, Auckland O’Connell Chambers, Auckland Tompkins Wake, Auckland
OTT v HOLT [Reasons] [2024] NZHC 3832 [13 December 2024]
Introduction
[1] On 19 November 2024, I made orders removing the current directors and appointing an independent director to progress the sale of two properties owned by Gold Crescent (NZ) Ltd (Gold Crescent).1 I now set out my reasons for making those orders.
[2] Ms Ott and Mr Holt are both directors and shareholders of Gold Crescent. They were married for 13 years and have now separated. Their separation is acrimonious. Gold Crescent owns six properties and while it is solvent, it is generating insufficient cashflow from those properties and has defaulted on loan repayments owed to the Bank of New Zealand (the BNZ). The BNZ has threatened to issue notices under the Property Law Act 2007 (the PLA) if Gold Crescent does not pay the outstanding amounts, which now exceed $100,000.
[3] The parties had agreed to sell two of Gold Crescent’s properties located in Mangakino and Taupō. The Mangakino property was put on the market but did not sell. The Taupō property has not been put on the market. Mr Holt no longer agrees to the sale of these two properties and says that a company property in Barrington Road, Grey Lynn (the Barrington property) should be sold. Ms Ott resides at the Barrington property and does not agree to its sale.
[4] Ms Ott applies for interim relief under s 174 of the Companies Act 1993 (the Act) for the removal of Mr Holt as director and the appointment of an independent director to oversee the sale of the Mangakino and Taupō properties so that the proceeds of sale can be used to repay borrowings from the BNZ. In her substantive claim (which is not the subject of this application for interim relief), Ms Ott also seeks orders for the independent director to liquidate the balance of Gold Crescent’s assets by sale on the open market or by transferring the assets to the shareholders on an equal basis.
[5] Mr Holt does not oppose the appointment of an independent director but opposes orders requiring the independent director to sell the Mangakino and Taupō properties.
1 Ott v Holt [2024] NZHC 3468.
[6] Before considering whether interim relief should be granted, I set out the relevant background and law.
Background
[7]Ms Ott and Mr Holt married in 2001 and have one child.
[8] Prior to their separation, they lived in their family home in Grey Lynn, which is not owned by Gold Crescent. Mr Holt continues to reside in the family home.
[9] The parties incorporated Gold Crescent on 11 January 2002. Both parties are directors and each holds 50 per cent of the shares. Gold Crescent owns six properties:
(a)three properties on what was previously one section in New Lynn;
(b)the Barrington property;
(c)the Mangakino property; and
(d)the Taupō property.
[10] The properties at New Lynn are all rented. Ms Ott is currently paying rent for the Barrington property. The Mangakino and Taupō properties are currently not generating any short or long-term rental income.
[11] The evidence indicates that the properties’ total value (which is disputed between the parties but may exceed $10 million) exceeds the current BNZ borrowings of approximately $4.1 million.
[12] The parties also incorporated a consulting company, Verdant Consulting (NZ) Ltd (Verdant) in 2004, 98 per cent of the shares are owned by the trustees of the Ambrosia Trust with each of Ms Ott and Mr Holt owning one per cent of the remaining shares. Verdant provided consulting services to Fonterra. Ms Ott and Mr Holt are both directors although Ms Ott has provided her resignation to Mr Holt, but that has not been provided to the Companies Office.
[13] On 27 January 2023, when the parties separated Ms Ott moved to the Barrington property and continues to reside there. The parties agreed that Ms Ott would pay $850 per week to Gold Crescent (as rental) and Mr Holt would pay $850 to Gold Crescent (for rent for the family home, against which Gold Crescent’s borrowings are also secured).
[14] In March 2023, Ms Ott incorporated GMO Consulting Ltd (GMO) and GMO now provides services to Fonterra. The invoices for those services indicate that the services involve Ms Ott acting as a programme manager for Fonterra.
[15] Both parties ceased paying Gold Crescent $850 per week in June 2023. Ms Ott recommenced paying $850 per week in August 2024. She recently started paying an additional $500 per week for the outstanding rental since June 2023.
[16] In or around November 2023, Gold Crescent started defaulting on its loan repayments to the BNZ.
[17] On 8 November 2023, Ms Ott applied to the Family Court for orders requiring the sale of the Mangakino and Taupō properties upon the grounds that the parties were unable to meet their current loan obligations and were at risk of their credit ratings being affected and possible mortgagee sales.
[18] On 23 January 2024, Mr Holt’s solicitors confirmed that he did not oppose the sale of the two properties.
[19] The position as at 22 February 2024 is helpfully set out in an oral judgment of Judge Burns:2
[2] There is an interlocutory application for an order for sale of two properties; one situated in Taupo and one in Mangakino. I think from the proceeds of sale of those properties, the parties will be able to substantially reduce the mortgage outstanding on other properties said to be worth somewhere between $12-13 million such that the parties may be able to negotiate a long-term resolution of the division of the balance of properties.
[3] The issue of sale has, it seems, been the subject of agreement recently. There is an issue about the terms and conditions. There is an issue about
2 Ott v Holt [2024] NZFC 1984 at [2] to [4], and [8].
access to the Taupo property in terms of PIN numbers and key availability. I detect that that can be resolved by agreement. I therefore think it is premature to set the interlocutory application down for hearing, but the case needs to be carefully case-managed, and I direct that it can be case-managed by a Docket C judge, either myself or Judge von Keisenberg, in order to ensure that momentum is maintained on these proceedings.
[4] I direct a telephone conference before me at 9 am in approximately four weeks’ time. The purpose of that telephone conference is to determine whether agreement has been reached with respect to the sale of the two properties and the terms and conditions, in which case if there has been, the matter will be adjourned to an anticipated date when those properties will be sold and the [net] proceeds determined.
…
[8] If agreement is not reached, it will be set down for hearing and I will define the issues for determination. It is likely to be a half day fixture so that progress can be made.
[20]In a further minute dated 25 March 2024, Judge Burns recorded that:
[3] I was told that both parties agreed that the Taupo and Mangakino properties be listed for sale in October 2024. They agreed that the shortfall on the mortgage had to be funded in the interim. They could not agree on the mechanism.
[21] The Mangakino property was listed for sale from June to September 2024 but did not sell. The agency agreement lapsed, and Mr Holt would not agree to a deadline date sale as recommended by the real estate agent. Nor would Mr Holt agree to signing a new agency agreement.
[22] In August 2024, Mr Holt proposed that the Barrington property be put on the market and that Gold Crescent does not sell the Mangakino and Taupō properties.
[23] In October 2024, the BNZ instructed a debt collection company to seek payment of the outstanding monies.
[24] On 7 November 2024, the debt collectors issued a 14-day notice to Gold Crescent for payment of $103,782.43 by 21 November 2024 and notifying Gold Crescent that notices under the PLA would be issued if it failed to comply.
[25] On 19 November 2024, I granted orders for the appointment of an independent director of Gold Crescent to progress the sale of the Mangakino and Taupō properties,
the proceeds of which are to be used to repay the BNZ, the independent director’s costs and the expenses of Gold Crescent.
Relevant law
[26] This is an application for interim relief based on Ms Ott’s claim that Mr Holt as director of Gold Crescent has conducted the affairs of Gold Crescent in a manner that is oppressive, unfairly discriminatory, or unfairly prejudicial to her (as shareholder). Ms Ott sought interim orders for Mr Holt’s removal as a director and for an independent director to be appointed to Gold Crescent to progress the sale of the Mangakino and Taupō properties (the two properties).
Companies Act 1993
Section 174(1) of the Companies Act 1993 (the Act) provides that:
174 Prejudiced shareholders
(1)A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the court for an order under this section.
(2)If, on an application under this section, the court considers that it is just and equitable to do so, it may make such order as it thinks fit including, without limiting the generality of this subsection, an order—
(a)requiring the company or any other person to acquire the shareholder’s shares; or
(b)requiring the company or any other person to pay compensation to a person; or
(c)regulating the future conduct of the company’s affairs; or
(d)altering or adding the company’s constitution; or
(e)appointing a receiver of the company; or
(f)directing the rectification of the records of the company; or
(g)putting the company into liquidation; or
(h)setting aside action taken by the company or the board in breach of this Act or the constitution of the company.
[28] An assessment of whether conduct is “oppressive, unfairly discriminatory, or unfairly prejudicial” is an objective standard focused on the impact of the relevant conduct on the applicant.3 Section 174 is concerned with the conduct of the affairs of the company and the acts of the company. Relief under s 174 is not available in respect of conduct or acts that fall outside those parameters.4 Section 174(1) does not require the offending conduct to have been carried out in bad faith or be otherwise unlawful.5
[29] The leading authority on the meaning of the statutory words “oppressive, unfairly discriminatory or unfairly prejudicial” is Thomas v H W Thomas Ltd.6 Richardson J observed that conduct may be discriminatory whether it offends some or all members of the company. The statutory concern is directed at conduct that amounts to an unjust detriment to the interests of a member or members of the company.7
[30] In considering a claim under s 174, the Court needs to be careful not to second guess management decisions that have been legitimately made whilst conducting the affairs of the company.8 The Court must also be wary of intervening in the management of the company to any greater extent than is necessary to provide an appropriate remedy.9
[31] In considering the meaning of “just and equitable” Lord Wilberforce in Ebrahimi v Westbourne Galleries Ltd considered that this recognises that there is room in company law to recognise that behind a company there are individuals with rights, expectations and obligations.10 The “just and equitable” provision enables the Court to subject the exercise of legal rights to equitable consideration: that is, considerations of a personal character arising between one individual and another which may make it unjust or inequitable to insist on legal rights, or to exercise them in a particular way.
3 Thomas v H W Thomas Ltd [1984] 1 NZLR 686.
4 Dromgool v S N Dromgool Ltd [2012] NZHC 2552 at [30].
5 Sturgess v Dunphy [2014] NZCA 266 at [62] and [137].
6 Thomas v H W Thomas Ltd, above n 3.
7 At 693.
8 Fairway Holdings Ltd v Furno Ltd [2014] NZHC 858 [Fairway] at [24].
9 At [26], citing Jordan v Chemical Specialities Ltd (1999) 8 NZCLC 261,839 at 261,848.
10 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 (HL) at 379.
Interim relief
[32] This is an application for interim relief. This Court has previously considered its jurisdiction to grant interim relief in relation to a claim under s 174 in Fairway Holdings Ltd v Furno Ltd.11 Lang J noted in that case that the traditional principles are appropriate. The Court must determine whether there is a serious question to be tried. If there is, the Court must consider whether the balance of convenience favours the granting of the interim relief sought. This requires the Court to step back and assess where the overall justice of the case lies.12
[33] In Fairway the Court granted interim relief because the shareholder who would not sign the special resolution knew and approved of the agreement to sell the property and it would arguably have been oppressive for him to refuse to take steps as may be necessary to complete the sale.13
Does the Court have jurisdiction to make the orders sought?
[34] Mr Jiang for Mr Holt argued that the Court “may” not have jurisdiction to make interim orders for the sale of land.
[35] I consider that Fairway is authority for granting interim relief under s 174 for the purpose of enabling land to be sold. Mr Jiang argued that Fairway is distinguishable because that case involved a signed sale and purchase agreement. That fact does not go to the legal issue of jurisdiction. If the Court had no jurisdiction, then interim relief could never be granted whether a sale and purchase agreement had been signed or not.
[36] I also reject Mr Jiang’s submission that the Supreme Court decision in Baker v Hodder14 supports the Court not having jurisdiction to make an interim order under the Act involving the sale of land. The issue regarding jurisdiction in Baker v Hodder concerned whether the Court had jurisdiction to require a shareholder to sign a special resolution and not whether the Court had jurisdiction to grant interim relief involving
11 Fairway, above n 8.
12 At [27] citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129.
13 At [29].
14 Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94.
the sale of land. The specific jurisdiction issue in Baker v Hodder is not relevant in this respect.
[37] The Supreme Court noted when it might be appropriate to make interim orders under s 174:15
[71] One situation in which it may be appropriate to make an order under s 174 against a minority shareholder who refuses to approve a major transaction is where there are particular circumstances that mean the minority shareholder is breaching a duty owed to the company or to another shareholder or an understanding among shareholders as to the ongoing conduct of the affairs of the company. There may be others; it is not necessary for us to reach a definitive view on that in the present case.
[38] The Supreme Court in Baker v Hodder was concerned that orders made under s 174 should not usurp a shareholder’s rights. Further, the Supreme Court noted that orders appointing a receiver to carry out a sale if there was a breach of s 174 may be an appropriate remedy.16 The Supreme Court’s observations indicate that interim relief can be granted in the appropriate circumstances.
[39] Mr Jiang then submitted that the Supreme Court in Baker v Hodder did not necessarily agree with Lang J in Fairway and referred to [65] of Baker v Hodder where the Supreme Court considered whether an unfair process had been adopted in the High Court. The Supreme Court noted that “for reasons we will come to, we do not consider that the fact that an order had been made in Fairway was a basis for concluding that there was an established process justifying the making of an order.” The Supreme Court’s observations at [65] relate to the process and not the issue of jurisdiction. On the process issue, the Supreme Court noted that Lang J in Fairway had not ordered the defendants to sign a special resolution authorising the sale and had made the orders interim only so that issues in dispute between the shareholders (being the value at which the property was to be sold) could be dealt with at trial at a later date.17
[40] Mr Jiang then argues that r 7.56 of the High Court Rules 2016 provides that a Judge may make an order authorising a person to sell property (other than land) and
15 At [71].
16 At [73].
17 At [66].
that by expressly referring to land, an order granting interim relief cannot be made for the sale of land.
[41] Mr Jiang’s submission regarding the High Court Rules ignores this Court’s decision in Fairway where interim orders were made under the Act to enable land to be sold.
[42] For the reasons above, I am satisfied the Court has jurisdiction to grant interim relief for the purpose of enabling land to be sold.
Is there a serious issue to be tried?
[43] I accept that there is a serious issue to be tried as to whether Mr Holt has acted in a manner that is oppressive, unfairly discriminatory, or unfairly prejudicial by changing his mind as to the sale of the two properties after agreeing they should be sold.
[44] Mr Holt has filed an affidavit. He deposes that he did not want to sell the two properties but wanted to sell the Barrington property. Mr Holt does not explain why the Family Court judgment (and minute) and his solicitor’s correspondence record that he agreed to the sale. I accept that Mr Holt agreed to the sale at the time that this was recorded by the Family Court. That is corroborated by the correspondence at the time.
[45] Mr Holt then deposes that the sale of the two properties will “cause significant losses” to Gold Crescent. Gold Crescent purchased the Mangakino property in 2007 for $330,000. Mr Holt asserts that if it is listed for a “quick-fire” sale, it will sell for less than the appraisal of $755,000 causing losses of $250,000.
[46] Ms Kathleen Shaw, a real estate agent in Taupō has provided an affidavit deposing that she is familiar with the Mangakino property and had previously been instructed to sell it between 23 June and 21 September 2024. She says that the market is generally quieter over the winter months. She had appraised the property at between
$695,000 to $795,000 and says that Mr Holt amended this to $750,000 to $820,000. She considered Mr Holt’s view of the price was too high. She recommended a deadline sale, but Mr Holt would not agree. Ms Shaw deposes that she is not proposing
a “quick-fire sale” but a deadline sale of six to eight weeks. She considers that this will assist in marketing the property and demonstrating that Gold Crescent is serious about selling.
[47] In circumstances where Gold Crescent paid $330,00 for the property, I do not accept that Gold Crescent is likely to suffer “serious loss”. Mr Holt appears to equate less capital gain (that he considers appropriate) with loss. There is no evidence that Gold Crescent is likely to suffer a loss if it proceeds to sell the Mangakino property. Mr Holt’s concern is not with avoiding a loss but with achieving a greater profit. While I accept that maximising profit is a reasonable concern for a director of a company, here Gold Crescent was in default of its loan repayments and the directors had acted prudently in agreeing the two properties should be sold.
[48] As to the Taupō property, Gold Crescent purchased it in 2020 for $2.08 million. Mr Michael Hughes, a real estate agent in Taupō has provided an affidavit. He deposes that he is very familiar with the property having sold it to Gold Crescent. He says that he was approached by Mr Holt in February 2024 about marketing the property and he provided an appraisal. His appraisal at that time was between $2.75 million and $3.1 million. Mr Hughes deposes that the market is now stronger than it was at the beginning of 2024. He says that when he was approached earlier in the year, in his discussions with Mr Holt, he understood the contentious issue was that Mr Holt expected a sale price well above $3 million. Mr Hughes says that his research and statistics do not support that expectation. His view is that there is a likelihood of a genuine sale in the high $2 million range. He says that his original appraisal still stands.
[49] Mr Holt’s evidence is that in a “quick-fire sale”, the Taupō house would sell for around $1 million less than the appraisal. Mr Holt is not a real estate agent. He is also not independent. I prefer the evidence of Mr Hughes as to the likely sale price. That clearly indicates that Gold Crescent is unlikely to suffer a loss if the Taupō property is sold. Rather, the sale of both properties, indicates that Gold Crescent is likely to make significant capital gains.
[50] Mr Jiang for Mr Holt argued that Mr Holt was entitled to change his mind and consider that another property should be sold if he considered it was in the best interests of Gold Crescent. I accept that profit maximisation is a relevant consideration for a director, but Mr Holt was aware in changing his mind that Gold Crescent owed monies to the BNZ and that the BNZ had made demands for repayment. He was also aware that Ms Ott lives at the Barrington property and that any sale of that property would require her to find another home. By August 2024, the Barrington property was also generating rental revenue. While Mr Holt deposes that his position is not motivated by a desire to force Ms Ott out of her home, it is difficult to accept this position when he had previously agreed to the sale of the other two properties.
[51] Mr Jiang also argued that it is better for Gold Crescent if the Barrington property is sold. Mr Holt’s affidavit attaches a desktop appraisal for the Barrington property from a real estate agent. The Barrington property has a capital value of
$1,575,000. The agent considers that a realistic selling range for the property is
$1,700,000 to $1,900,000. In relation to Grey Lynn, the appraisal notes that like most of New Zealand, demand dropped off in Grey Lynn, but the agent has seen activity and demand pick up and he considers that prices are “back on the up”.
[52] As noted in Fairway the Court must be wary of intervening in the management of a company to any greater extent than is necessary to provide an appropriate remedy.18 By advancing the argument that the sale of Grey Lynn is better for Gold Crescent, Mr Holt is asking the Court to interfere with the management of Gold Crescent and make a determination as to which property to sell. The Court should be reluctant to do this when the directors have themselves previously agreed to sell the other two properties.
[53] That agreement was recorded in a Family Court judgment and minute. The evidence does not indicate that such an agreement was contrary to the obligations of the directors at that time in circumstances where Gold Crescent was (and remains) in default of its loan repayments. The evidence indicates that the market has likely improved since the initial agreement, so any returns are likely to be better.
18 Fairway, above n 8, at [26].
[54] There is also the obvious relationship property dispute. In Galante v Orinoco Organics Ltd, Cull J considered that it would be unjust and inequitable to ignore the wider relationship property context when considering an application under s 174 of the Act.19 The purpose and context of Gold Crescent is therefore relevant. The Barrington property is currently Ms Ott’s home, and she has communicated to Mr Holt that she wishes to remain living in the property.
[55] Mr Jiang accepted that there was a deadlock between Mr Holt and Ms Ott but argued that Mr Holt’s conduct did not offend s 174. Rather, he argued that Ms Ott’s conduct caused Gold Crescent to default on its loan repayments to the BNZ. Mr Holt has a counterclaim against Ms Ott for alleged oppressive conduct. Mr Jiang argued that Ms Ott had caused GMO to “misappropriate” the contract between Verdant and Fonterra, and that is the cause of Gold Crescent defaulting on its loan repayments.
[56] The evidence indicates that the “consultancy services” GMO provides to Fonterra are Ms Ott acting as programme manager for Fonterra. Mr Jiang was unable to explain the legal basis for Ms Ott being required to continue to provide services to Verdant after she had separated from Mr Holt. There is no evidence of any restraint of trade agreement between Verdant and Ms Ott. To the extent that Mr Holt alleges that Ms Ott has breached her director’s duties to Verdant, that is a claim as between Verdant and Ms Ott. It is not relevant to any legal obligation that Ms Ott may owe to Gold Crescent. Unless Gold Crescent can establish a legal obligation on Ms Ott to pay her income (or top-up contributions) to Gold Crescent so that it does not default on its loan repayments, I do not consider that this negates my finding that there is a serious question to be tried as to Mr Holt’s conduct in changing his mind about the sale of the two properties.
[57] Mr Jiang then submits that in June 2023, Ms Ott suddenly stopped paying rent for the Barrington property and that she then unilaterally decided to sign a tenancy agreement in July 2024 and in August 2024 started paying $1,350 to Gold Crescent.
[58] Gold Crescent’s records indicate that both Mr Holt and Ms Ott were paying Gold Crescent $850 per week. They both stopped making those payments. Ms Ott
19 Galante v Orinoco Organics Ltd19 [2020] NZHC 3154 at [33].
has resumed the repayments and is now paying $1,350. The evidence suggests that the non-payment by both Ms Ott and Mr Holt may have contributed to Gold Crescent defaulting.
[59] It appears from the evidence that Gold Crescent relied on top-up payments from its shareholders to be able to service its borrowings. Mr Jiang has not advanced any evidence that establishes that Ms Ott has a legal obligation to make top-up contributions to Gold Crescent. If such an obligation exists, it likely equally applies to Mr Holt as the other 50 per cent shareholder.
[60] Mr Holt has been aware of the BNZ defaults since at least November 2023. He has had notice of a claim under s 174 for many months. While I can understand the frustration Mr Holt is likely feeling in having to sell properties when the market may not be at its 2021 levels, that frustration needs to be viewed against the reality that with the separation, the purpose of the company (as a joint enterprise between spouses) is now at an end. The issue has now become urgent because of the BNZ’s clear indication that it will move to the next stage and issue PLA notices to Gold Crescent if nothing happens. In circumstances where Mr Holt as director had previously agreed to sell the two properties to satisfy the BNZ’s demands, I do consider that there is a serious question to be tried as to whether he has acted in an oppressive manner by changing his mind.
Balance of convenience
[61] If the orders are not granted, then the BNZ will likely proceed to exercise its rights as mortgagee. Both parties accept that the sale price from any mortgagee sale would likely be less than if Gold Crescent took steps itself to sell the properties. It is agreed that property needs to be sold so that Gold Crescent can meet its debts as they fall due.
[62] The balance of convenience weighs in favour of granting the orders sought by Ms Ott and it is in the interests of justice for Gold Crescent to avoid a mortgagee sale of any property.
[63] As to potential prejudice to Mr Holt, while the effect of the interim order may be permanent in that the properties will be sold, the determination as to whether Mr Holt’s conduct was oppressive is not final, nor do the interim orders impact Mr Holt’s counterclaim against Ms Ott. If Mr Holt is successful in establishing that Ms Ott has acted oppressively and he has suffered losses as a result (by reduced profits arising from her refusal to sell the Barrington property), he may be entitled to claim compensation under s 174(2). Mr Holt’s concern is not with the sale of the properties but with reduced financial returns to him (as shareholder). If he does suffer losses, Ms Ott has provided an undertaking as to damages. Mr Holt’s right to defend Ms Ott’s claim and pursue his counterclaim is preserved as the orders are by way of interim relief only.
[64] Finally, I urge the parties to agree an amicable resolution of the relationship property issues. It is in no party’s interests to incur further legal costs that will ultimately result in a reduced relationship property pool for division. Any gains in market improvements are likely to be lost to lawyers’ fees if resolution is not reached without delay.
Result
[65] For the reasons set out above, I granted the following orders as set out in my results judgment:20
(a)Mr Benjamin Francis is appointed as an independent director of Gold Crescent.
(b)Upon Mr Francis’ appointment, Ms Ott and Mr Holt are to be removed as directors of Gold Crescent.
(c)Mr Francis is appointed to sell the Gold Crescent properties at Mangakino and Taupō, the proceeds of which are to be applied:
(i)to repayment of Gold Crescent borrowings from the BNZ;
20 Ott v Holt, above n 1, at [9].
(ii)to payment of Mr Francis’ reasonable costs; and
(iii)to the ongoing operation of Gold Crescent.
(d)Leave is granted to the parties to seek such further orders as may be necessary for the sale of the properties and the ongoing management of Gold Crescent until determination of the substantive proceedings.
Tahana J
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