Whitley v Property Ventures Limited (in liquidation)

[2022] NZHC 3144

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2010-409-123

[2022] NZHC 3144

UNDER

the Companies Act 1993

IN THE MATTER

of the liquidation of Property Ventures Limited and others

BETWEEN

KEVIN JOHN WHITLEY as liquidator of PROPERTY VENTURES LIMITED

(IN LIQUIDATION)
Application

AND

PROPERTY VENTURES LIMITED (IN LIQUIDATION)

First Respondent

LIVINGSPACE PROPERTY LIMITED (IN LIQUIDATION)

Second Respondent

continued…2

Hearing:	(Determined on the papers)
Appearances:	J Moss for Applicant
Judgment:	28 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in relation to approval of liquidator’s rates of remuneration)

WHITLEY v PROPERTY VENTURES LIMITED (IN LIQUIDATION) [2022] NZHC 3144

[28 November 2022]

AND

CASHEL VENTURES LIMITED (IN LIQUIDATION)

Third Respondent

CASTLE STREET VENTURES LIMITED (IN LIQUIDATION)

Fourth Respondent

LICHFIELD VENTURES LIMITED (IN LIQUIDATION)

Fifth Respondent

FIVE MILE HOLDINGS LIMITED (IN LIQUIDATION)

Sixth Respondent

TAY VENTURES LIMITED (IN LIQUIDATION)
Seventh Respondent

GIBBSTON WATER HOLDINGS LIMITED (IN LIQUIDATION)

Eighth Respondent

ST ASAPH STREET VENTURES LIMITED (IN LIQUIDATION)

Ninth Respondent

BEECHNEST VENTURES LIMITED (IN LIQUIDATION)

Tenth Respondent

92 LICHFIELD LIMITED (IN LIQUIDATION)
Eleventh Respondent

MONTECRISTO CONSTRUCTION COMPANY LIMITED (IN LIQUIDATION)
Twelfth Respondent

TUAM VENTURES LIMITED (IN LIQUIDATION)

Thirteenth Respondent

[1]    Mr Whitley was appointed liquidator of the companies immediately listed below, by the Registrar of Companies on 22 September 2021:

(a)Livingspace Properties Limited;

(b)Cashel Ventures Limited;

(c)Castle Street Ventures Limited;

(d)Lichfield Ventures Limited;

(e)Tay Ventures Limited;

(f)Five Mile Holdings Limited;

(g)Property Ventures Limited;

(h)St Asaph Ventures Limited; and

(i)Gibbston Water Holdings Limited.

[2]    The above appointment was made as the previous liquidator, Mr Robert Bruce Walker, ceased to be a licensed insolvency practitioner on 31 August 2021 creating a vacancy for all companies of which he was liquidator.

[3]    On 25 February 2022,  Mr Whitley was  appointed by Wylie  J  liquidator of  a further three companies being:

(a)Beechnest Ventures Limited;

(b)92 Lichfield Limited; and

(c)Montecristo Construction Company Limited.

[4]    It seems the issue of the approval of Mr Whitley’s fees was not raised before Wylie J. That may well be because his appointment followed an informal application prior to a case management conference before his Honour.

[5]    On  24   March   2022,   Mr   Whitley   took   over   the   liquidation   of Tuam Ventures Ltd. Mr Walker had transferred to the liquidation of that company to

another liquidator. As a result of Mr Whitley’s discussions with that liquidator, it was agreed it was sensible for Mr Whitley to take over the liquidation  of  Tuam  Ventures Ltd given its connection to the other companies to which Mr Whitley had been appointed and its involvement in litigation in which some of the other companies were involved.

[6]    Mr Whitley seeks, on a without notice basis, approval for his rates of remuneration from the date of the above appointments. I am satisfied that it is appropriate the application be dealt with on a without notice basis.

[7]Mr Whitley’s rates are:

Personnel	Hourly rates (GST exclusive)
Principal/Director	$400
Practice and Senior Client Managers	$200 - $280
Intermediate and Senior Insolvency Accountants	$150 - $200
Junior     Insolvency     Accountants     and     Office Administrators	$100

[8]    The above rates are well within the range of fees routinely approved by the Court. There is independent expert evidence confirming that the above rates are reasonable and I accept that evidence.

[9]    Mr Whitley has accepted appointments from the Registrar and from the Court. Had the Court appointed Mr Whitley by way of formal application, it is inevitable that approval of his rates would have been sought and, given that his rates are reasonable, they would have been approved as part of such an application.

[10]   Here, the liquidator brings a prospective application, that is, an application for approval of his future rates and a retrospective application approving the rates from the date of his appointment.

[11]   The point of a prospective application is that, absent approval, liquidators are limited to deducting fees on an interim basis at the rate specified in reg 28 of the Liquidation Regulations 1994. Those rates are out of date.

[12]   The short point is, Mr Whitley is entitled to apply to have his rates approved. His rates are reasonable and accordingly I see no reason not to approve the rates in [7] above.

[13]   Accordingly, there is an order in terms of paras 1.1 to 1.5 of the application dated 5 July 2022. One of the orders sought confirms that Mr Whitley’s actual rates are subject to s 284(1)(e) of the Companies Act 1993.

[14]   I note that the application was made on a somewhat informal basis. The proceeding  in  which  this  application  was  made  does  not  in  fact  include  all  the companies referred to above as parties, but they have been named on the application as respondents without actually having been joined. While, as I have said, there is an element of informality in that regard, given I am satisfied it is appropriate that the application be dealt with on a without notice basis, it is consistent with the objectives in r 1.2 of the High Court Rules 2016 that a pragmatic approach is taken.

Associate Judge Lester