Sheehan and Lock in their Capacities as Joint and Several Liquidators of SS Farms Australia Pty Limited (in rec and in liq) HC Auckland CIV-2011-404-001623

[2011] NZHC 509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-001623

UNDER  The Insolvency (Cross Border) Act 2006

IN THE MATTER OF     An originating application for recognition of a foreign main proceeding

BETWEEN  JOHN SHEAHAN AND IAN RUSSELL LOCK IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF SS FARMS AUSTRALIA PTY LIMITED (IN RECEIVERSHIP AND LIQUIDATION)

Applicants

CIV-2011-404-001626

AND BETWEEN            JOHN SHEAHAN AND IAN RUSSELL LOCK IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF CEDENCO JV AUSTRALIA PTY LIMITED (IN RECEIVERSHIP AND LIQUIDATION)

Applicants

CIV-2011-404-001619

AND BETWEEN            JOHN SHEAHAN AND IAN RUSSELL LOCK IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF SK FOODS AUSTRALIA PTY LIMITED (IN RECEIVERSHIP AND LIQUIDATION)

Applicants

Hearing:         On the papers

Counsel:         D Chisholm for Applicants

SHEAHAN HC AK CIV-2011-404-001623 20 May 2011

Judgment:      20 May 2011 at 3:30 PM

JUDGMENT OF COURTNEY J

[1]      The applicants, John Sheahan and Ian Russell Lock, are the joint and several liquidators of three Australian companies within the Cedenco group, Cedenco JV Australia Pty Ltd (in receivership and liquidation), SS Farms Australia Pty Ltd (in receivership and liquidation) and SK Foods Australia Pty Ltd (in receivership and liquidation).  They have made originating applications in respect of the liquidations of each company for orders that the liquidations be recognised as foreign main proceedings under the Insolvency (Cross Border) Act 2006.

[2]      The purpose of the Act, as provided in s 3, is to implement the Model Law of cross border insolvency adopted by the United Nations commission on international trade law in 1997 in order to provide a framework for facilitating insolvency proceedings  where  insolvency  administrations  contain  an  international  element. Under Schedule 1, Chapter III the New Zealand High Court may recognise a foreign proceeding.  Such applications are to be brought by a “foreign representative” and, provided the statutory requirements set out at Article 17 of Schedule 1, Chapter III are satisfied, the applicant is entitled to an order recognising the foreign proceeding.

[3]      The applications are supported by an affidavit of Mr Sheahan detailing the circumstances of the liquidation proceedings.  There is, in addition, an affidavit by Glenn Stuart Davis, an Adelaide solicitor acting for the applicants in their capacity as liquidators of the companies.  He deposes to the facts of the liquidations, identifies the  liquidators’ duties  and  powers  under Australian  law  and  refers  to  the  other foreign proceedings already recognised as foreign main proceedings. It is evident from these affidavits that the applicants are foreign representatives for the purposes of the Act and the liquidation proceedings are foreign proceedings.

[4]      An application for recognition is required by Article 15(2) to be accompanied by either a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative or a certificate from the foreign court affirming

the existence of the foreign proceeding and the appointment of the foreign representative. Alternatively, in the absence of either of these pieces of evidence any other evidence acceptable to the Court of the existence of the foreign proceeding and appointment of the foreign representative.  In addition, an application for recognition is also required to be accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative.  In respect of each of the applications Mr Sheahan’s affidavits provide sufficient evidence of these matters in the form of minutes of creditors’ meetings and instruments of appointment of administrators.

[5]      In terms of identifying the foreign proceedings as required by Article 15(3) Mr Davis’ affidavit identifies the foreign proceedings in respect of each company known to the foreign representative liquidators.  In the case of Cedenco, Mr Sheahan also refers to New Zealand companies that are part of the Cedenco group, namely Ex-Ced Foods Ltd and Cedenco Okakune Ltd (both in receivership and liquidation). Mr Sheahan and Mr Lock were appointed joint and several liquidators of both these companies in May 2010.  The business and banking companies of Cedenco and the New Zealand Cedenco companies were related and enquiries by the Cedenco liquidators as to the circumstances of the failure of the New Zealand companies are relevant to the Cedenco litigation.

[6]      I am satisfied that the requirements of Article 17 are met and that each of the proceedings relating to the Australian companies are to be recognised as a foreign main proceeding. I make orders accordingly.

[7]      As the liquidators are agents and representatives of the company I direct that service be dispensed with under R 24.56(2)(b) High Court Rules.

P Courtney J