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Quinn v Toon

Quinn v Toon

Case [2020] NZHC 816 30 April 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-697

[2020] NZHC 816

IN THE MATTER OF the liquidation of INVESTACORP HOLDINGS LIMITED

BETWEEN

CLIVE ANTHONY QUINN and PHILIP SAMSON WELLS

Applicants

AND

VICTORIA TOON

First Respondent

BRUCE JAMES THOMPSON
Second Respondent

CAROLYN MARY THOMPSON and STEWARTCO TRUSTEE SERVICES LIMTED

Third Respondents

PAMELA ISOBEL QUINN

Fourth Respondent

Hearing: 18, 19 and 20 September 2019

Appearances:

S P Bryers for the Applicants

G P Blanchard QC and Tiaan Nelson for the Respondents

Judgment:

30 April 2020

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 30 April 2020 at 3:00pm
pursuant to r 11.5 of the High Court Rules

Solicitors:

………………………….
Registrar/Deputy Registrar

McVeagh Fleming, Auckland, for the Applicants Chris Taylor Lawyers, Auckland, for the Respondents Copy for:
S P Bryers, Barrister, Auckland, for the Applicants
G P Blanchard QC and Tiaan Nelson, Auckland, for the Respondents

CLIVE ANTHONY QUINN and v VICTORIA TOON [2020] NZHC 816 [30 April 2020]

CONTENTS

Paragraph

Introduction [1]

Background to the company going into liquidation [7]

Start of the liquidation [24]

Events during the liquidation [28]

In light of the settlement agreement made in 2017, should Ms Toon

have investigated Mr Thompson’s complaints? [77]

What were the effects of Ms Toon enquiring into Mr Thompson’s
complaints? [105]

How much should Ms Toon receive for her remuneration? [115]

Steps to complete the liquidation [147]

Result [149]

Introduction

[1] The main question is how much Ms Toon should be paid for her work as liquidator of Investacorp Holdings Ltd. The liquidation is almost complete. She claims $101,729 plus GST and expenses as her remuneration for work until the hearing. In addition to normal expenses, at the end of August 2019 she had run up legal fees of $63,158 plus GST.

[2] This was a solvent liquidation. When the company went into liquidation, it had a portfolio of shares in publicly-listed companies, funds held on term deposit and a half share of the proceeds of sale of a commercial building which had just been sold. There were no creditors to speak of. There had however been disputes between shareholders. Before liquidation they had made a settlement agreement. The liquidation was intended to realise the assets of the company and to allow the shareholders to go their separate ways, but their differences dogged the liquidation. Ms Toon took up the dispute.

[3] There are two applications. The applicant shareholders, trustees of the C A Quinn Trust, apply for orders under s 286 and directions under s 284 of the Companies Act 1993. They say that Ms Toon has breached her duty under s 253 of that Act by enquiring into matters that had already been settled by the shareholders. They seek directions for her to complete the liquidation. Ms Toon has applied under ss 276 and 284 of the Companies Act for orders approving her remuneration.

[4] Under s 253 of the Companies…

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 Quinn v Toon

Details

AGLC: Quinn v Toon [2020] NZHC 816
Case: [2020] NZHC 816
Decision Date: 30 April 2020

CaseChat Overview and Summary

The High Court was asked to decide the amount of remuneration to be paid to Ms Toon as liquidator of Investacorp Holdings Ltd, a solvent liquidation. The shareholders had reached a settlement agreement and appointed Ms Toon as liquidator. The liquidator was asked to complete the liquidation and distribute the assets to the shareholders, but instead took up complaints that had already been settled. The shareholders applied for directions for the liquidator to complete the liquidation and for approval of her remuneration. Ms Toon applied for approval of her remuneration. The main issue was the amount of remuneration that Ms Toon should receive. The shareholders argued that the liquidator had spent much of the liquidation time and resources investigating complaints that had already been settled, and that this was unnecessary and unreasonable. They argued that the liquidator had breached her duty to complete the liquidation in a reasonable and efficient manner. The liquidator argued that she was entitled to claim for all her time and expenses, and that she had not been unreasonable. The court found that the liquidator should not have investigated the settled complaints and had taken a wrong turn early in the liquidation. The investigation had led to delays, extra work and increased costs. The court fixed the liquidator’s remuneration at $28,000 plus GST, plus expenses, but reduced it for unnecessary work, including investigating the settled complaints. The court gave directions for the liquidator to complete the liquidation.

Orders