Stiassny v Lighter Quay Hotel Management Limited (in rec and in liq) HC Auckland CIV 2010-404-4427

[2010] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-4427

BETWEEN  MICHAEL PETER STIASSNY AND BRENDON JAMES GIBSON Applicants

ANDLIGHTER QUAY HOTEL MANAGEMENT LIMITED (IN RECEIVERSHP AND IN LIQUIDATION) Respondent

Hearing:         14 July 2010

Counsel:         A Horne and A Lloyd for Applicants

E S Lawless for Respondent

Judgment:      14 July 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Minter Ellison Rudd Watts, PO Box 3798, Auckland

Shieff Angland, PO Box 2180, Auckland

STIASSNY V LIGHTER QUAY HOTEL MANAGEMENT LIMITED (IN RECEIVERSHP AND IN LIQUIDATION) HC AK CIV 2010-404-4427  14 July 2010

[1]      Messrs Stiassny and Gibson were appointed as receivers and managers of Lighter Quay Hotel Management Ltd (the company) on 30 June 2010.  Earlier today, at  12.19pm,  Associate  Judge  Bell  made  an  order  placing  the  company  into liquidation.  The receivers had not appreciated until shortly before that hearing that the liquidation application was set down for hearing today.

[2]      On reflection, after the liquidation order was made, the receivers perceived a problem with the way in which they had intended to deal with the termination of contracts of employment and the offer of employment on new terms to the existing employees.    They  sought  urgently  an  order  under  ss 31(2)(a)  and  32(3)  of  the Receiverships Act 1993, entitling them to act as agents of the company, for the purpose of giving notices of termination of contracts of employment.   During the course of the hearing, that was extended to enable the receivers to act as agents of the  company for  the  purpose  of  making  new  offers  of  employment  to  existing employees.

[3]      I required the liquidators to be notified of the application.  At short notice, Mr Lawless  has  appeared  on  behalf  of  the  liquidators  of  the  company.    The liquidators had been prepared to consent to appointment of the receivers as agents of the company under s 31(2)(b) but were not prepared to give that consent for a period beyond 11 August 2010, a date that has assumed some significance as a result of orders I made earlier today on an application by owners of units managed by the

company to cancel leases and to obtain possession of the units.[1]

[1] Tan v Lighter Quay Hotel Management Ltd HC Auckland CIV 2010-404-4042, 14 July 2010.

[4]      I gave further time for counsel to discuss issues.  A form of words has been agreed for the Court to make an order.  The order will be made without opposition from the liquidators, but not on the basis of an express consent.  I record that is an appropriate stance for the liquidators to take, having regard to the short notice they have had to consider the issues.

[5]      Without opposition from the liquidators, I make the following orders:

a)       The receivers shall be entitled, until 11 August 2010, to act as agents of the company for the limited purpose of giving notice of termination of contracts of employment entered into by the company and to make such offers of new employment as they consider appropriate, provided any new contracts are terminable on 7 days’ notice.

b)The  period  within  which  termination  of  contracts  of  employment entered into by the company is required to be given under s 32(1)(b) of the Receiverships Act 1993 is extended to Friday 16 July 2010.

c)       Leave is granted for the receivers to make their application by way of originating application.

d)       Costs are reserved.

[6]      Leave   to   apply   generally  is   also   reserved,   in   case   any   unexpected developments occur which require urgent intervention by the Court.

P R Heath J