Price v Price
[2025] NZHC 1061
•6 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002407
[2025] NZHC 1061
BETWEEN LESLEY JENNIFER PRICE
First Plaintiff
LESLEY JENNIFER PRICE and PENELOPE MARY SMALLEY-
OLDFIELD as trustees of the TAIHIKI FAMILY TRUST
AND
ANDREW RAYMOND PRICE
First Defendant
ANDREW RAYMOND PRICE, LESLEY JENNIFER PRICE and VIVIENNE
SMALLEY as trustees of the MANUWAI RAIL TRUST
BIOBJECT LIMITED
Third DefendantMANUWAI FIELDS LIMITED
Fourth Defendant
Hearing: 25 March 2025 Appearances:
J Phillips for Plaintiffs S Munro for Defendants
Judgment:
6 May 2025
Reissued:
28 May 2025
[REISSUED] JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 06/05/2025 at 3 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
PRICE v PRICE [2025] NZHC 1061 [6 May 2025]
Registrar/Deputy Registrar
Introduction
[1] In July 2021 a Family Court judgment ordered the division of Lesley and Andrew Price’s relationship property (Family Court judgment). The Family Court judgment was sealed in September 2021. Since then, the division of the relationship property has mostly been resolved, except for two companies:
(a)Manuwai Fields Ltd (MFL) which owns an approximately 10.8 hectare block of bare farmland in Karaka (Karaka Property); and
(b)Biobject Ltd (BL) which owns a commercial property at 16 Railway Street, Newmarket (Railway Street Property).
[2] Lesley Price and Andrew Price are directors of MFL. Andrew Price is registered as owning 1,500 shares and Lesley Price as owning 500 shares.
[3] Andrew Price is the sole director of BL. The shares in BL are held by the trustees of the Manuwai Rail Trust (MRT), who are Andrew Price, Lesley Price, and Vivienne Smalley.
[4] In the Family Court judgment, the Family Court found that Lesley Price was entitled to a half-share of the value of the shares in MFL rather than the quarter-share she currently holds.
[5] The Family Court also ordered resettlement of a half-share in MRT (which owns BL) on trust for Lesley Price and their children on the same terms as the existing family trust MFT. Lesley Price set up a new trust, the Taihiki Family Trust, to receive the MRT shares.
[6] In the intervening four years the defendants have not given effect to the Family Court judgment.
[7] Consequently, in an attempt to bring the matter to a conclusion, the plaintiffs (Lesley Price as first plaintiff and Lesley Price and Penelope Smalley-Oldfield as trustees of the Taihiki Family Trust as second plaintiff), apply for the following orders:
(a)In proceeding CIV-2024-404-2304, a declaration and orders under the Trusts Act 2019 in relation to MRT, namely:
(i)a declaration that one of the defendants, Mr Price (as an MRT trustee), has acted in breach of his trustee’s duties;
(ii)an order removing another MRT trustee, Vivienne Smalley, and appointing a replacement trustee, Penelope Smalley-Oldfield; and
(iii)orders requiring the MRT trustees to sign a share transfer to give effect to the judgment of the Family Court, and a shareholders’ special resolution placing BL into liquidation; and in the event Mr Price refuses to do so, removing him as an MRT trustee.
(b)In proceeding CIV-2024-404-2407, orders placing MFL and BL into liquidation under s 174 and/or s 241 of the Companies Act 1993.
[8] The removal of Vivienne Smalley as a trustee of MRT is not opposed. However, the defendants do oppose the appointment of Penelope Smalley-Oldfield as a trustee. The defendants’ position is that any trustee appointment needs to be truly independent.
[9] The defendants oppose the remaining orders. Andrew Price says there have been negotiations between the parties to try to swap shares or calculate a buyout of Lesley Price’s shares, but these have been unsuccessful.
Background
[10] Andrew Price and Lesley Price married in 1989. There are four children of the marriage who are now all adults. Lesley Price and Andrew Price separated in 2017 and an order dissolving the marriage was sealed in June 2018.
[11] Following the separation, Andrew Price and Lesley Price were unable to agree upon the division of their relationship property. This disagreement was the subject of the Family Court judgment.
[12] In relation to MFL, Lesley Price was concerned about her unsuccessful attempts to have her shares paid out by Andrew Price and was not confident he would co-operate in a timely manner.
[13] The Family Court Judge recorded that Andrew Price wanted to retain the MFL shares for his benefit and/or the benefit of the parties’ adult children and accepted he may need to sell the Karaka Property if he was unable to raise sufficient funds to purchase Lesley Price’s share of MFL. The Family Court Judge recorded that, in that event, the company would need to be wound up and associated costs taken into account.
[14] The Family Court Judge also recorded that Lesley Price was agreeable to Andrew Price retaining the shares in MFL if she were paid out for her 50 per cent entitlement.
[15] No such agreement has been reached. Notably, there is a dispute over the value of the MFL shares. Andrew Price says the value should be based on a GST exclusive valuation of the farm. Lesley Price says that MFL claimed back the GST when the farm was purchased, and that it is currently an asset of the company.
[16] As to BL, the dissolution of the marriage left Andrew Price with full control of BL while Lesley Price was unlikely to benefit in the foreseeable future from the family trust despite being a trustee and beneficiary of MRT which owns the shares in BL.
[17] The primary asset of BL is the Railway Street Property. Andrew Price has separate companies that operate a business out of this property. At the time of the Family Court judgment, the Railway Street Property had been most recently valued in February 2021 at $3.8 million. The value of the BL shares is essentially the value of the Railway Street Property.
[18] Since the Family Court judgment, Andrew Price has not transferred 50 per cent of the BL shares in MRT to the Taihiki Family Trust or paid the Taihiki Family Trust for the value of those shares. Andrew Price says that attempts to transfer the BL shares have been unsuccessful as the valuation set out in the Family Court judgment needed serious revision.
[19] Ultimately, both parties agree that the situation in relation to both MFL and BL is at an impasse.
[20] Lesley Price says that appointment of liquidators to MFL and BL would enable independent insolvency professionals to obtain valuations, sell MFL and BL’s assets, determine inter-entity loans between BL and other companies operated by Andrew Price, and distribute the net proceeds of the liquidations in accordance with MFL and BL’s shareholdings.
[21] The defendants oppose the appointment of a liquidator on the basis that there is no oppressive, unfairly discriminatory or unfairly prejudicial conduct. Andrew Price says that he has consistently been interested in buying Lesley Price out of the Karaka Property owned by MFL and the only issue relates to GST. Andrew Price also says that the Railway Street Property owned by BL is currently on the market with a professional agent running a proper marketing campaign and there is no point appointing a liquidator in those circumstances.
Discussion
[22] It is abundantly clear that Lesley Price is entitled to a half value of the shares in MFL. That has already been determined in the Family Court and is not disputed. Rather, the issue is how that can be achieved in the absence of agreement as to the value of the shares.
[23] Lesley Price’s family trust, Taihiki Family Trust, is also entitled to a half-share of the assets of MRT, which is essentially the value of the BL shares (which, in turn, is the value of the commercial building owned by BL). The value of those shares was determined by the Family Court to be $3.8 million less loans and other adjustments. The loans have now been repaid from the proceeds of the sale of the matrimonial home. However, the situation is somewhat complicated by the fact that a business owned by Andrew Price is the tenant of the property owned by BL. He is very much in a superior position so far as control of the situation is concerned.
[24] In the Family Court judgment, the Judge said that Andrew Price has been a successful businessman for many years and the Judge experienced Lesley Price’s frustration in dealing with Andrew Price. The Judge noted that while Andrew Price gives the outward appearance of wanting to cooperate and resolve matters, the reality of the situation can be quite different.
[25] The value of the shares in the respective companies applied in the Family Court judgment was as follows:
(a)the value of the shares of MFL was $2,965,087.13 being the land value plus various other assets and less the mortgage debt owed on the Karaka Property at the time;
(b)the value of the shares in BL was $3,142,366.68 being the value of the Railway Street Property less lending against the property.
[26] The core matters in dispute between Andrew and Lesley Price relate to the value of the BL and MFL shares, largely based on the value of the Railway Street Property and the Karaka Property.
[27] Andrew Price did not present any evidence including from an accountant or valuer regarding the property values. He only arranged for the Railway Street Property to be marketed after these High Court proceedings were commenced.
[28] Lesley Price provided valuation evidence in respect of the Karaka Property. As of 24 April 2024, the Karaka Property was valued at $3.67 million (unchanged since the property’s value at January 2019, as recorded in the Family Court judgment). The court orders recorded the values of the shares in MFL at $2,965,087.13 being the land value of $3.67 million plus various other assets totalling $94,275 less the mortgage debt then owning and secured against the Karaka Property. As stated above, the mortgage debt has been repaid in full.
[29] When the Karaka Property was purchased, MFL was set up as a GST registered company so that it could claim back the GST on the purchase price. Andrew Price says this means that on any future sale or share transfer between the parties the GST would separate out and be due to the IRD. The inclusion/non-inclusion of GST in the payment to Lesley Price is a difference of approximately $250,000. Andrew Price says the value of MFL shares should reflect what he says is an inevitable GST liability upon the sale of the Karaka Property.
[30] Andrew Price says that the farm runs at a loss each year funded by himself, and he has made continuous offers to purchase Lesley Price’s shares, but the GST issue has always been a stumbling block. Andrew Price says he is still willing to accept the valuation on the farm that was prepared during much better market conditions but with GST taken into account.
[31] Lesley Price filed expert accounting advice that GST liability is contingent and would only be payable in limited circumstances. Lesley Price says that any potential future GST liability does not affect the share value of MFL.
[32] Andrew Price also filed expert evidence from an accountant, Mr Nisbet. It was filed late but no issue is taken with the lateness of it. Mr Nisbet’s evidence demonstrates a number of situations involving sale of the Karaka Property and the GST situation that would result. If MFL retains the property however that liability will not arise.
[33] At present, the company has the value of the GST, and it forms part of the company’s assets. In the future, that may become a liability, but it is contingent upon
a number of factors including whether MFL sells the property or retains it. The dispute is impeding the division of relationship property.
[34] In respect of the Railway Street Property, Andrew Price says the offers received since the Family Court decision are well below the court determined valuation.
[35] Andrew Price says BL’s only asset is the Railway Street property which is on the market, and it is hard to see how the management of the company which is a sole director company can be said to be deadlocked or that it is just and equitable to liquidate it. Andrew Price says that there would be no advantage to any party and liquidation would only subject the company to further costs and charges. He says it is certainly not the only appropriate method to bring the parties’ commercial relationship to an end. Andrew Price does not however offer any alternative method short of Lesley Price agreeing to resolve matters as he suggests.
[36] Lesley Price says that in view of the complete breakdown in the commercial relationship between herself and Andrew Price, the parties must go their separate ways. The reallocation of shares and the liquidation of both companies, she says, will enable the parties to do so.
Companies Act proceedings
[37] Section 174 of the Companies Act 1993 provides that a shareholder may apply to the Court for an order against the company where they consider that the company’s affairs have been, are being, or are likely to be, conducted in a manner that is oppressive, unfairly discriminatory or unfairly prejudicial to them. The Court may make any order it considers is just and equitable, including an order putting the company into liquidation.
[38] In Vey Group Ltd v Vance the Court of Appeal cited Richardson J in Thomas v H W Thomas Ltd where it was said that s 174 is directed at conduct “amounting to an unjust detriment to the interests of a member or members of the company”.1 It has
1 Vey Group Ltd v Vance [2020] NZCA 232; [2021] 2 NZLR 541 at [12] citing Thomas v HW Thomas [1984] 1 NZLR 686 (CA).
been said that the standard should not be read restrictively;2 the conduct need not be undertaken in bad faith;3 and unfairness requires a visible departure from the standards of fair dealing, assessed in light of the history and structure of the company and the expectations of its members.4 Overall, s 174 offers a broad, flexible, remedial rather than punitive, jurisdiction.5
[39] In the pleadings Lesley Price seeks an order that the companies be put into liquidation.
[40] At the hearing Andrew Price addressed the possibility of a buyout with the main issue being the value of the shares. In memoranda filed after the hearing both parties confirmed that they do not seek a buyout order.
[41] In order to make a buyout order the Court would need to determine a “fair value” for the shares and would need to determine a date at which that assessment is to be made. The general principles for determining a fair value of shares relate to:6
(a)the date on which the value of shares is to be fixed;
(b)whether a minority discount should be applied; and
(c)the effect of valuation methods and compulsory share acquisition provisions in the constitution.
[42] The price to be fixed by the Court for the purpose of a buyout order must be fair in all the circumstances and is not restricted to only “ordinary valuation principles”.7 The Court’s discretion in this matter includes to “put right and cure for
2 Sturgess v Dunphy [2014] NZCA 266 at [138].
3 Vey Group Ltd v Vance, above n 1, at [12].
4 Sturgess v Dunphy, above n 2, at [137]-[138].
5 Sturgess v Dunphy, above n 2, at [148] citing Vey Group Ltd v Vance, above n 1.
6 For a comprehensive discussion, see Company law (online ed, Thomson Reuters) at [CA174.07].
7 M Yovich & Son Ltd v Yovich (2001) 9 NZCLC, 490, at [35].
the future the unfair prejudice which the petitioner has suffered at the hands of the other shareholders”.8 There is no hard and fast rule of fixing fair value.9
[43] The Court also has a wide discretion to determine the valuation date and there is no general rule as to what the appropriate date for valuation is.10 The Court must do whatever is fair and equitable in the circumstances,11 and the overriding necessity is for the Court to do justice on a case-by-case basis.12
[44] Alternatively, the Court may appoint a liquidator under s 241(4)(d) of the Companies Act if it is satisfied that it is just and equitable to do so. The words “just and equitable”’ are words of the widest significance. They do not limit the jurisdiction of the Court to any case. Each case must be considered on its facts.13
[45] A liquidation order can be made if is it the only appropriate method of bringing the parties’ commercial relationship to an end.14
[46] Lesley Price says that she has been prejudiced by Andrew Price’s conduct because the property market has worsened in the intervening period. Andrew Price says the failure to transfer the shares has not had any prejudicial effect on Lesley Price. He says the suggestion that the transfer involved him “preferring his own interests” or “stalling on the share transfer” to get some sort of better deal is baseless. It was Lesley Price who insisted on delaying resolution in order to get renewed valuations to take advance of the climbing property values between 2015 and 2021.
[47] Lesley Price says that she has tried to resolve matters by agreement rather than by issuing proceedings, but that proved impossible. She says there are inter-entity matters between BL and Andrew Price’s other companies which need to be determined and which are very unlikely to be resolved by agreement. Lesley Price has no
8 Re Bird Precision Bellows Ltd [1984] 3 All ER 444 upheld on appeal in Re Bird
Precision Bellows Ltd [1985] 3 All ER 523, at 529. See also M Yovich & Sons Ltd v Yovich, above n 9, at [35] citing Re Bird Precision Bellows Ltd.
9 Green v Gillette [2022] NZCA 408 at [66].
10 Holden v Architectural Finishes Ltd (1996) 7 NZCLC 260,976 at 52-53.
11 At 52.
12 At 53.
13 McGehan v Te Hoe Dairies Ltd [2021] NZHC 1796 at [15].
14 Jenkins v Supscaf Ltd [2006] 1 NZLR 264 at [117].
confidence or trust in Andrew Price’s conduct and management of MFL and BL affairs.
[48] Andrew Price says that he is now willing to transfer shares as ordered but is not prepared to pass shareholder resolutions to liquidate MFL and BL and allow an independent insolvency practitioner to sell the properties, determine any remaining disputes and distribute net proceeds to the legal and beneficial shareholders.
[49] Andrew Price says that he does not have the means to affect a buyout at the share value as determined in the 2021 Family Court judgment.
[50] Lesley Price says the value of the shares of MFL is subject to issue estoppel.15 If Andrew Price wishes to proceed with a buyout of MFL shares, the property and share value has been previously determined in the Family Court. Alternatively, if the Court orders a buyout, Lesley Price submits that the appropriate date for determining fair value for the shares under s 174 is the value recorded in the Family Court judgment with suitable adjustments for the mortgages having been repaid.
Trusts Act proceedings
[51] The Trusts Act 2019 provides that the Court may make an order removing a trustee and appointing a replacement trustee when it is necessary or desirable, or difficult or impractical to do so without the assistance of the Court. This includes where a trustee is incapable of fulfilling their trustee obligations.16 Trustees must be neutral and even-handed as between beneficiaries with different interests.17 The Court must appoint the person or persons best suited to administer the trust in the circumstances prevailing.18 Appointment of a new trustee is at the Court’s discretion.19
[52] If the Court is satisfied on the balance of probabilities that an act, omission, or decision made by a trustee was or is not reasonably open to the trustee, the Court may
15 Laughland v Stevenson [1995] 2 NZLR 474 at 477.
16 Re Borich Family Trust [2014] NZHC 780 at [5].
17 Mendelssohn v Centrepoint Community Growth Trust [1999] 2 NZLR 88 (CA) at 97-98; Guest v Warner [2018] NZAR 423 at [26].
18 At 97.
19 McLaughlin v McLaughlin [2021] NZHC 3015 at [135].
set aside the act, direct the trustee to act, restrain the trustee from acting, or make any other orders the Court considers necessary.20
[53] In considering this, the Court will determine whether the decision is one that a reasonable body of trustees, properly informed as to the meaning of the relevant provisions of the trust deed, could have arrived at.21
[54] A trustee may apply to the Court for directions regarding trust property or the exercise of any power or performance of any function by the trustee.22 The Court can make any direction it thinks fit. Section 133 is a “robust, parallel source of jurisdiction to resolve any substantial question of law concerning the meaning or administration of a trust”.23
[55] The jurisdiction for trustee directions includes where there is good reason for the Court to intervene such as the trustees being deadlocked, or the trustees being disabled by a conflict of interest.24 In exercising its jurisdiction to give directions on such an application, the Court is engaged solely in determining what ought to be done in the best interests of the trust estate, and not in determining the rights of adversarial parties.25
[56] Lesley Price says that Andrew Price’s failure to facilitate the transfer of shares in BL to the Taihiki Family Trust in accordance with the Family Court judgment was a breach of trust and a course of conduct not reasonably open to him. A reasonable trustee properly informed would have complied with the orders made in relation to the Family Court judgment and arranged for the share transfers.
[57] Andrew Price says that he was never presented with any share transfer documents and is only one of three trustees responsible for complying with the order.
20 Trusts Act 2019, s 127.
21 Re Honoris [2018] 3 NLR 160 at [56].
22 Trusts Act 2019, s 133.
23 New Zealand Maori Council v Foulkes [2015] NZAR 1441 at [46], referring to the Trustee Act 1956, s 66.
24 At [44] and [46].
25 S R Hamilton Corporate Trustee Ltd and Lamb Trust Services Ltd v White [2016] NZHC 1408 at [60].
[58] That submission ignores the reality that from the date of the order Andrew Price has attempted to renegotiate the value of the shares. He has stalled on the transfer while trying to negotiate a better deal for himself personally. I agree that there is a conflict of interest and Andrew Price preferred his interests over those of the beneficiaries of the trust.
Removal of Vivienne Smalley as MRT Trustee
[59] There is no dispute that Vivienne Smalley lacks capacity to carry out her obligations as trustee due to ongoing health issues and it is appropriate that the Court remove her as a trustee. This is not objected to, and I make that order.
[60] There is an application for appointment of Penelope Smalley-Oldfield as a replacement trustee. The purpose of any such appointment is to facilitate the transfer of the BL shares as envisaged by the Family Court judgment. Lesley Price intends that, after transfer of the shares in BL, she and Penelope Smalley-Oldfield can pass a special resolution placing BL into liquidation. Lesley Price will have no further interest in the assets of MRT and she and Penelope Smalley-Oldfield can at that point resign or be removed as trustees.
[61] The rationale for having Penelope Smalley-Oldfield appointed as a trustee is that she has known Andrew Price for a long time, they have a communicative relationship and Penelope Smalley-Oldfield is willing and able to act as a “buffer” between Lesley Price and Andrew Price. Penelope Smalley-Oldfield is willing to be appointed as trustee of MRT.
[62] Andrew Price objects to Penelope Smalley-Oldfield being appointed as a trustee on the basis that she is Lesley Price’s sister and “hardly impartial”. The current trustee Vivienne Smalley is Lesley Price’s cousin. Andrew Price has not proposed an alternative replacement trustee.
[63] The fact that the current trustee Vivienne Smalley is related to Lesley Price is largely irrelevant. At the time the trust was set up the parties were not separated, and the current situation of conflict did not exist. If a new trustee is appointed, that new
trustee must be independent. Penelope Smalley-Oldfield is not a suitable replacement trustee.
[64] Andrew Price as trustee of MRT has failed to comply with orders to transfer 50 per cent of the shares in BL to the Taihiki Family Trust. He has assured the Court that he is prepared to comply with the Family Court Order. If that is the case, then there is no need to appoint an independent trustee as the only purpose in doing so is to affect the share transfer.
The way forward
[65] At the time of the Family Court proceeding, Andrew Price recognised the need to resettle a half-share in MRT on a trust for Lesley Price and the children to reflect the parties’ equal contribution to MRT and the benefit they enjoyed from that family trust during their marriage. It was acknowledged that this might result in the need to sell BL’s commercial building if MRT was unable to pay out Lesley Price’s entitlement.
[66] What has in fact transpired is that Andrew Price has retained control of the assets of the trust by virtue of his position as a director in BL.
[67] Andrew Price argues for essentially a continuation of the status quo upon an assurance by him that the Railway Street Property is for sale. Matters have, however, gone on too long for that situation to continue. Andrew Price has had five years to sell the property and only put the property on the market after these proceedings were issued.
[68] Andrew Price wishes to buy Lesley Price’s shares in MFL but at a price that she does not agree to. Neither party seeks a buyout order, and the Court would not make one in the circumstances of this case. The dispute over the valuations and ongoing efforts to renegotiate the value of the shares makes an order for buyout impractical. It will simply prolong the dispute between the parties and delay the division of assets.
[69] The mortgages against the Railway Street Property and against the Karaka Property were repaid in full in June 2022 from the proceeds of sale of the matrimonial home.
[70] Lesley Price is tired of negotiating with Andrew Price. She says that she has spent three years trying to be reasonable and the only way to resolve the deadlock is to appoint independent liquidators for both BL and MFL so that they can obtain valuations and list the properties for sale. Lesley Price says her life is still very much on hold while she awaits full payment of her share of the relationship property. She wants a clean break so that she can move on with her life and her retirement.
[71] The reallocation of shares and the liquidation of both companies is required to bring the parties commercial relationship to an end.
[72] Andrew Price’s conduct has been unfairly prejudicial and oppressive towards Lesley Price as she has been denied the degree of control over each company that she is entitled to. Andrew Price has and continues to make decisions that affect Lesley Price. Andrew Price has also used his position as sole director of BL to frustrate the effect of the Family Court judgment and to prevent the Taihiki Family Trust from obtaining its half share entitlement in that company in a timely manner.
[73] Accordingly, I find that it is just and equitable to make an order under s 241 of the Companies Act placing both MFL and BL into liquidation and appointing an independent liquidator.
Result
[74] I give judgment for the plaintiffs against the defendants and make the following orders:
(a)Vivienne Smalley is removed as a trustee of Manuwai Rail Trust.
(b)The remaining trustees are to comply with the order of the Family Court and transfer 50 per cent of the shares in Biobject Ltd from the Manuwau Rail Trust to the Taihiki Family Trust within 20 working days.
(c)Andrew Price is to transfer 25 per cent of the shares in Manuwai Fields Ltd to Lesley Price within 20 working days.
(d)If Andrew Price fails to execute documents to comply with the direction in (b) or (c), the Registrar is nominated pursuant to s 44A of the Senior Courts Act 2016 to execute any necessary documents for the shares in Biobject Ltd to be transferred from the Manuwai Rail Trust to the Taihiki Family Trust as directed, or for the shares in Manuwai Fields Ltd to be transferred from Andrew Price to Lesley Price as directed.
(e)Following the transfer of the shares from Manuwai Rail Trust to the Taihiki Family Trust, Lesley Price is to resign as a trustee of Manuwai Rail Trust.
(f)Following the registration of the transfer of the shares in Biobject Ltd from Manuwai Rail Trust to the Taihiki Family Trust and the transfer of 25 per cent of the shares in Manuwai Fields Ltd from Andrew Price to Lesley Price, Biobject Ltd and Manuwai Fields Ltd are immediately placed into liquidation; and the date and time of each company’s liquidation is the time of registration of the corresponding share transfer.
(g)Steve Khov and Keiran Jones are appointed as liquidators of Manuwai Fields Ltd and Biobject Limited.
Interest
[75] Lesley Price and the trustees of the Taihiki Family Trust seek interest under ss 9 and 10 of the Interest on Money Claims Act 2016 (IMCA) on:
(a)The 50 per cent distribution to Lesley Price from the sale of the Karaka Property.
(b)The 50 per cent distribution to the Taihiki Family Trust from the sale of Railway Street Property.
[76] It is apparent from the chronology that the delay in resolving this matter has largely arisen from Andrew Price’s determination to negotiate the value of the MRT shares (based on the value of the property owned by BL), and the ongoing negotiations as to the GST issue in respect of the Karaka Property. Andrew Price would neither pay the price Lesley Price agreed to sell at nor sell the property so that the proceeds could be divided. That was not his decision to make. This matter should have been resolved in September 2021.
[77] However, the mandatory regime in ss 9 and 10 of the IMCA applies to money judgments. A money judgment under the IMCA is defined as a judgment or an order given or made by a court in a civil proceeding that requires the payment of money.26 While the above order to liquidate MRT and BL will eventually result in the payment of money to Lesley Price, it is not in and of itself an order requiring the payment of money. So, although the end result of the orders which I have made might be a financial distribution to the plaintiffs, the sections do not apply.
Costs
[78]The parties are directed to attempt to agree costs.
[79]If the parties are unable to agree on costs, I make the following directions:
(a)any application for costs is to be made by memorandum to be filed and served within 20 working days of the date of this judgment;
(b)any reply from Mr Price is to be filed and served by memorandum within a further 10 working days; and
(c)memoranda as to costs are not to exceed five pages.
[80] I will deal with the issue of costs on the papers unless the parties indicate that hearing time is required.
26 Interest on Money Claims Act 2016, s 6.
Wilkinson-Smith J
Solicitors:
J Phillips, Auckland S Munro, Auckland
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