Roper v NZ Safety Brokers New Zealand Limited 9in liquidation)

[2019] NZHC 3207

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-37

[2019] NZHC 3207

UNDER

Section 286 of the Companies Act 1993

IN THE MATTER OF

an application under s 286 for appointment of new liquidator

BETWEEN

GRAHAM IAN ROPER

Applicant

AND

NZ SAFETY BROKERS NEW ZEALAND LIMITED (IN LIQUIDATION)

Respondent

Hearing:

4 December 2019

(By way of telephone conference)

Counsel:

B L Gray for the Applicant

J C D Guest for the Respondent

Judgment:

5 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 5 December 2019 at 4.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 5 December 2019

ROPER v NZ SAFETY BROKERS NEW ZEALAND LIMITED (IN LIQUIDATION) [2019] NZHC 3207

[5 December 2019]

[1]        The application brought by Mr Roper for appointment of new liquidators to NZ Safety Brokers New Zealand Ltd (in liquidation) (“the company”) is set down for hearing on 12 December 2019 before me in Dunedin.

[2]        By  way  of  background  to  this   judgment,   I   refer   to   my  Minute   of 23 August 2019 where I set out the potential for a practical resolution of the proceedings.

[3]        In short, the present liquidators, the Laings, were, without any admission of fault on their part, prepared to take the pragmatic step of stepping down if their fees were met. At that time Mr Guest for the Laings indicated $25,000 would be sufficient.

[4]        At that  time, it  was contemplated that the $25,000 would be held  pending   a replacement liquidator’s ability to seek a review of those fees through the RITANZ fee review process.

[5]        Unfortunately, Mr Roper was not able to accumulate the necessary funds until only recently. As Mr Gray, for Mr Roper acknowledges, further fees have been incurred by the liquidators including counsel’s fees in relation to this application as the liquidators could not ignore the looming hearing date.

[6]        With Mr Roper having been able to put the funds into trust, a memorandum was filed by Mr Gray in effect seeking to revive the settlement proposal.

[7]        A telephone conference was held on 4 December 2019 to address the possibility of settlement and as a result of discussions the following orders are able to be made by consent:

(a)Mr Roper is to pay in cleared funds $25,000 to Mr Guest’s firm’s trust account.

(b)The  current  liquidators  will  stand  down   as   liquidators   upon   Mr Iain Nellies of Insolvency Management, providing the appropriate consent to accept appointment.

(c)If Mr Nellies, upon his appointment, confirms that he does not intend to take any steps to review the existing liquidators’ fees then the existing liquidators’ fees will be final.

(d)If  Mr  Nellies  is  not  prepared  to  give  that  commitment  within   15 working days of his appointment then in the event that a review is commenced, the retiring liquidators are able to raise a further fee note in relation to all their fees and disbursements, including counsel’s fees, incurred to their date of resignation.

(e)The hearing scheduled for 12 December 2019 is vacated and the above is in settlement of those proceedings, including issues of costs.

[8]        I record that the retiring liquidators’ preference was for a RITANZ approved liquidator to be appointed. Apparently, Mr Nellies is not RITANZ approved. I advised counsel and the liquidators who joined in the conference that Mr Nellies is well known to the Court and to me personally and I had no hesitation in endorsing his appointment as a suitable liquidator and I record that here.

[9]        For the avoidance of doubt, when I have referred to “the liquidators’ fees” above, it is to be taken to be a reference to all liquidators’ costs and disbursements including counsel’s costs.

[10]      I reserve leave to apply should any issues arise in relation to compliance with the above directions or in relation to any further steps that may be required. I will leave it to counsel and to the retiring liquidators and the new liquidator to be appointed to liaise in respect of the necessary documentation of the agreement, again reinforcing the leave that is reserved.

[11]      Again, for the avoidance of doubt, while I have said that the fixture set down for Thursday 12 December 2019 in Dunedin is vacated with no issue as to costs, in the event that either party has need to apply in respect of compliance, then the costs in relation to those steps will be subject to the usual rules, that is costs can be sought if that is appropriate.

[12]      I record that this judgment was dictated during a telephone conference held to address the hearing on 12 December 2019. When the judgment is released, should counsel identify any material issues that need to be readdressed then that will be covered by the leave.

[13]      I have also been asked to record the basis of the $25,000 payment. The existing liquidators have issued summary judgment proceedings against Mr Roper in the District Court in respect of an alleged current account indebtedness. The liquidators have agreed to accept the sum of $25,000 in full and final settlement of those proceedings. I am advised that those proceedings are for call in the District Court in Dunedin next week. Provided the cleared funds are paid as set out above, Mr Guest has advised that those proceedings will be struck out with no order as to costs.

Associate Judge Lester

Solicitors:
Anthony Hamel Lawyer, Dunedin

Copy to counsel: B L Gray, Barrister, Dunedin
Downie Stewart, Dunedin