Parbery v Heat Exchanger Services Limited HC Christchurch CIV 2009-409-2624

[2010] NZHC 979

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-002624

BETWEEN  JULIAN DAVID PARBERY Plaintiff

ANDHEAT EXCHANGER SERVICES LIMITED

First Defendant

ANDJAMES PARBERY Second Defendant

Hearing:         20 April 2010

22 June 2010

Appearances: P A Cowey & Mr Morris for Plaintiff

C Vinnell for interim liquidator of First Defendant
C T Patterson for Second Defendant

Judgment:      22 June 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE DOHERTY

[1]      The Official Assignee was appointed interim liquidator of Heat Exchanger Services Limited on 10 November 2009.  An application to appoint a final liquidator was set for hearing on 20 April 2010.  That application was made on the grounds that it  was  just  and  equitable  that  the  company  be  wound  up.    That  was  because difficulties had arisen between the principal shareholder parties who are the plaintiff and his trust, and the second defendant and his trust.

[2]      Before there was an adjudication, the protagonists settled their differences and were to implement a settlement agreement as to the dispute them.  At that time, by consent, the second defendant withdrew his opposition to the application and both

parties agreed that should the agreement proposed not proceed, a liquidator should

PARBERY V HEAT EXCHANGER SERVICES LIMITED AND ANOR HC CHCH CIV-2009-409-002624  22

June 2010

be appointed.  Mr Patterson, for the second defendant, confirms that position remains and there is no longer any opposition, and there is a consent.

[3]      I still have to exercise a discretion in relation to the appointment of the liquidator.  Without going through it, I record that there is a litany of evidence as to the breakdown of the relationship between the two shareholders and their interests. Having considered all of the evidence filed by the plaintiff and the second defendant, I am satisfied:

a)       That Heat Exchanger Services Limited was owned and until recently operated as a quasi partnership.

b)That there has been a complete breakdown of the relationship between not only the shareholders but the directors.  Since affidavits were filed for the 20 April hearing there have been further developments.  The second defendant has purchased the security interest of Heat Exchanger Services Limited’s bankers and by machination appointed a receiver.   I have received also the third report of the Official Assignee.  It is his view that as the dispute between the shareholders has not been resolved within the eight months of the interim liquidation, the company should be put in liquidation.

c)       There is a deadlock in the management of the affairs of the company, and although they now are secondary, there remains the possibility as a fourth step to investigate various affairs of the company.

[4]      There is ample authority for the Court to  exercise its discretion in such circumstances, and counsel have helpfully referred me to the cases such as Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 and Re Deep Sea Trawlers Ltd (1984) 2

NZCLC 99,137 (HC).

[5]      Taking all of those matters into account, I am satisfied it is appropriate to make orders under s 214(4)(d) of the Companies Act 1993 that a liquidator be

appointed as a final liquidator.  I make that order, and as a consent to appointment has been filed, I appoint Messrs K A Horne and D D Crichton as final liquidators.

[6]      That leaves the matter of costs.  The plaintiff makes an application for costs to be paid by the second defendant in the cause of this action.  He seeks also that the second  defendant  should  contribute  to  the  costs  of  the  interim  liquidator.    The interim liquidator has advised that he will be making an application for approval of his costs in the interim liquidation.

[7]      I am of the view that all cost matters should be heard together.  In saying that, I am also conscious of the cost of argument of such, particularly when one counsel comes from out of town.  All counsel have consented to my dealing with the matter of costs on a timetabled basis by the provision of written submissions, and that I might make my decision on the papers.

[8]      The matter of costs, then, is adjourned on this basis:

i)That the interim liquidator will file and serve an application, together with any supporting affidavits and memoranda in support of his application, by 25 June 2010.

ii)       The plaintiff is to file and serve a memorandum as to costs by

29 June 2010.

iii)The second defendant is to file and serve his memorandum as to costs by 2 July 2010.

iv)      Any reply is to be filed and served by 5 July 2010.

[9]      My timing for the making of the order for liquidation is 2.45 p.m, 22 June

2010.

ASSOCIATE JUDGE DOHERTY

Solicitors:

Parry Field, Christchurch
Official Assignee, Christchurch

Anthony Harper Lawyers, Christchurch

Graeme Skeates Law, Auckland
(Counsel: C T Patterson, Auckland)