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Court of Appeal of New Zealand |
Last Updated: 13 November 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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AND BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
25 July 2013 (further memoranda received on 2 August and
7 August 2013) |
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Court: |
O’Regan P, French and Winkelmann JJ |
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Counsel: |
K W Clay for Appellants T G H Smith for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
B No order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
[1] At issue in both appeals is whether a liquidator may issue a statutory demand for a debt owed to a company in liquidation at a time when a receiver has been appointed by a secured creditor, the debt forms part of the secured assets, and the secured creditor has not surrendered the security.
[2] Property Ventures Ltd (Property Ventures) is one of a large number of companies associated with Mr David Henderson. Receivers were appointed to Property Ventures on 5 March 2010 pursuant to a general security agreement, and the company was then put into liquidation on 27 July 2010. Mr Simon Thorn and Mr Timothy Downes were its receivers, and Mr Robert Walker, its liquidator.[1]
[3] The receivers had difficulty in obtaining the full accounting records of Property Ventures, and it was the liquidator, Mr Walker, who was ultimately able to obtain them. Utilising the information extracted from those records, he issued statutory demands in relation to particular payments. One demand was to the appellant Gibbston Downs Wines Ltd (Gibbston) for $1,520,123.03. The other was to the appellant Spinach Design Ltd (Spinach Design) in relation to a debt of $12,206.25.
[4] Both Gibbston and Spinach Design applied to set aside the statutory demands on grounds that there was a substantial dispute as to whether the debt specified in the demand was due and owing, and that the liquidator of Property Ventures had no authority to issue the statutory demand because of the receivership. Gibbston advanced an additional ground ― that there was misconduct on the part of the liquidator which justified setting aside the statutory demand.
[5] In the High Court, Associate Judge Osborne issued separate judgments contemporaneously, dismissing Gibbston’s and Spinach Design’s applications.[2] Both Gibbston and Spinach Design appeal the finding that the liquidator had power to issue the statutory demands. Spinach Design also appeals the finding that there was no genuine or substantial dispute of the debt.
First ground of appeal: liquidator’s authority to issue demands
High Court judgment[3]
[6] The Associate Judge addressed the liquidator’s primary argument which was that as a matter of first principle the liquidator has the right to issue a statutory demand. This right arises from the general law of contract with regard to debts and from the statutory regime, in particular s 248 of the Companies Act 1993 (the Act) (which stipulates the effect of the commencement of a liquidation) and s 253 (which describes the principal duty of a liquidator). We set out these two provisions below:
248 Effect of commencement of liquidation
(1) With effect from the commencement of the liquidation of a company,—
(a) the liquidator has custody and control of the company’s assets:
(b) the directors remain in office but cease to have powers, functions, or duties other than those required or permitted to be exercised by this Part:
(c) unless the liquidator agrees or the Court orders otherwise, a person must not—
(i) commence or continue legal proceedings against the company or in relation to its property; or
(ii) exercise or enforce, or continue to exercise or enforce, a right or remedy over or against property of the company:
(d) unless the Court orders otherwise, a share in the company must not be transferred:
(e) an alteration must not be made to the rights or liabilities of a shareholder of the company:
(f) a shareholder must not exercise a power under the constitution of the company or this Act except for the purposes of this Part:
(g) the constitution of the company must not be altered.
(2) Subsection (1) does not affect the right of a secured creditor, subject to section 305, to take possession of, and realise or otherwise deal with, property of the company over which that creditor has a charge.
253 Principal duty of liquidator
Subject to section 254, the principal duty of a liquidator of a company is—
(a) to take possession of, protect, realise, and distribute the assets, or the proceeds of the realisation of the assets, of the company to its creditors in accordance with this Act; and
(b) if there are surplus assets remaining, to distribute them, or the proceeds of the realisation of the surplus assets, in accordance with section 313(4)—
in a reasonable and efficient manner.
[7] The Associate Judge accepted the liquidator’s argument that the fact that a secured creditor has a charge over a property of the company does not alter its status as “property of the company”. Although a charged asset may not form part of the assets of the company, it remains part of the property of the company and were it not for the insolvency the directors could issue the statutory demand. Section 248(1)(c)(i) and (ii) makes clear that after liquidation it is the liquidator who may authorise the commencement or continuation of legal proceedings and enforce rights or remedies over property of the company. The Associate Judge said:[4]
There may be many reasons why a secured creditor will delay or give up on pursuing a particular debt or other item of property. The Court has no evidence in this case of the secured creditor’s thinking and it is not for the Court to speculate. On the other hand, the liquidator, with control of the company, has a broad responsibility to creditors; this includes an asset such as a debt. The secured creditor has its rights ahead of unsecured creditors. But the rights of the secured creditor in relation to this debt do not place it ahead of those with preferential claims under Schedule 7. Certain claims by employees and by the Commissioner of Inland Revenue, for instance, are preferential. Just as the liquidator has obligations to meet preferential claims (under s 312 of the Act), so too do receivers (see s 30 Receiverships Act 1993). Receivers may decide not to pursue a debt from which preferential creditors who have proved in the liquidation might be paid. In such circumstances, in the absence of a receiver’s initiative, the company is entitled to pursue the claim.
[8] He noted that counsel for Gibbston Downs relied on provisions and commentaries which emphasise the custody and control which receivers (as against liquidators) have over charged assets. However, he said:[5]
Such emphasis may mask the company’s right to pursue its debts (subject to accounting to the receivers). Mr Clay did not identify any authority which takes away from the company, upon liquidation and receivership, the power to demand debts owing to it.
I find that the company’s power to pursue its debts has not been removed and that the statutory demand which the liquidator has caused to be issued is an effective statutory demand.
[9] The Associate Judge also addressed s 254(a) of the Act, relied upon by the liquidators which provides:
Except where the charge is surrendered or taken to be surrendered or redeemed under section 305, a liquidator may, but is not required to, carry out any duty or exercise any power in relation to property that is subject to a charge.
[10] He noted that s 254 had been enacted as a response to the finding of Williamson J in Re Your Size Fashions Ltd, that where a secured creditor takes no steps in relation to assets subject to the security, the liquidator was obliged to realise the assets as they remain assets of the company. [6]
[11] The Associate Judge saw this provision as a recognition of the liquidator’s discretion to carry out any duty or exercise any power in relation to property not the subject of a charge, and continued:[7]
Having regard to the context in which s 254 was enacted and having regard to the indication given by its heading, it would be an unusual result if Parliament were taken to have created in the liquidator a power or right of recovery which would not have existed but for s 254. The apparent purpose of s 254 is to create not an addition to the liquidator’s powers but rather an exception to the liquidator’s principal duty. Had it been necessary, I would almost certainly have decided that s 254 was not a distinct source of a liquidator’s powers. In particular, that it is not a distinct source of a liquidator’s right to pursue by statutory demand a debt owed to the company but the subject of a charge in favour of the chargeholder. As, for reasons I will come to, I will be finding that the liquidator has that power but for other reasons, it is not necessary that I decide the precise limits of s 254 and I do not do so. That said, s 254 may, through the express reference to a discretion to carry out any duty or exercise any power in relation to property that is subject to a charge, may be taken as recognising that powers may exist in relation to charged property, even where the charge has not been surrendered or taken to be surrendered or redeemed under s 305 of the Act. By s 254(a), the liquidator must act to pursue property which was previously the subject of a charge where the chargeholder has surrendered the charge or the charge is taken to be surrendered or redeemed under s 305. The consequence of surrender under s 305 is that the property is now available for the general benefit of creditors, with the chargeholder able only to claim as an unsecured creditor for its whole debt.
...
The fact that Parliament has legislatively recognised the possibility of the liquidator having in that situation a power in relation to the property that remains subject to the charge is some reinforcement at least of the likelihood that the liquidator has such a power in the first place. So, too, is the observation of this Court in Sintel-Com (in liq) v Telecom New Zealand Ltd in which Rodney Hansen J stated (albeit in a different context, namely a liquidator’s steps to retrieve a mortgaged property):
If a secured creditor has no interest in realising or surrendering a charged asset, the liquidator may take action provided the interests of the security holder are not prejudiced.
(footnotes omitted.)
Application to adduce further evidence
[12] Prior to the hearing of this appeal, Property Ventures applied for an order that an affidavit of Mr Simon Thorn sworn 19 March 2013 be admitted as evidence in the Gibbston Downs appeal. In his affidavit Mr Thorn says that the reason the receivers have not involved themselves in the liquidators’ efforts to recover the debt from Gibbston Downs is that they remain sceptical as to whether Gibbston has the ability to meet the debts. He says:
Further, if GDWL was to make a substantial payment to the liquidator, the liquidator would be bound to notify us of any recovery. He would also be under an obligation to account to us as agent for the first ranking secured creditor if funds were recovered which were subject to the security (being after payment of the costs of recovery and any preferential creditors which rank ahead of the secured creditors for the collection of book debts in the 7th Schedule to the Companies Act 1993 or in section 30 of the Receiverships Act as the case may be).
Until that happens, the receivers have no interest being involved in the recovery action being undertaken by the liquidators. It is in fact a cost effective process for the liquidator to bear the costs of recovery and for the secured party to ultimately benefit if that is successful.
I am most concerned that rights that belong to us as receivers appear to have been appropriated by certain parties, hostile to the interests of our appointer, to frustrate those interests. I gave no permission for the appropriation of those rights and certainly would not have done had I been asked.
[13] The last paragraph refers to the fact that the issue of who should be endeavouring to recover the debt owed by Gibbston Downs is a matter between the receivers and the liquidators of Property Ventures.
[14] The application for leave to admit this further evidence was opposed on the grounds that it was not fresh evidence. The effect of the evidence is that Mr Thorn was more than happy for the creditor to be pursuing this debt and that he regarded the liquidator as acting as the receivers’ agent for this purpose. However, the attitude of the receiver to the statutory demand was at issue, and indeed was referred to by the Associate Judge, and so the evidence should have been produced at the first hearing.
[15] During the hearing we ruled that we would provisionally receive the evidence and would rule upon its admissibility in this judgment.[8] For reasons we come to shortly, we have decided to admit the evidence.
Counsels’ arguments as to the power of a liquidator to issue statutory demands
[16] Counsel for Gibbston and Spinach Designs submits that the effect of liquidation and receivership is as follows:
(1) The receiver of a company in liquidation is entitled to continued custody and control of the charged assets, and to realise and apply the proceeds towards the secured debt.
(2) The liquidator does not displace the receivers in the control and custody of the company’s assets and the receiver of a company in liquidation is entitled to continued custody and control of the charged assets.
(3) The Act contemplates that secured creditors will act independently of the liquidation, unless they decide to surrender their interest and security in terms of s 305(1)(c).
[17] The appellants say that the Associate Judge erred because he based his decision upon the proposition that while the charged property of the company does not form part of the assets of the company, it nevertheless remains property of the company. Gibbston and Spinach Design submit that there is no distinction under the Act between “assets of the liquidation” and “the property of the company”. This is because the liquidator may only exercise powers in relation to property which is included in the liquidation. Because the company’s assets subject to a charge and under which the secured creditor has taken steps fall outside the liquidator’s custody and control, the liquidator cannot exercise powers over that property. The Associate Judge was wrong to find, in reliance upon ss 248 and 253 (and without resort to s 254(a)) that a liquidator had the power or right to issue the statutory demand.
[18] Secondly, Gibbston argues that s 254(a) was enacted so that a liquidator could not be compelled to deal with charged assets where the secured creditor had failed to take any steps. It is not a distinct source of a liquidator’s power to deal with charged assets. It only covers the situation where the secured creditor has not taken any steps, which is why the evidence of the receivers’ attitude to recovery of these assets was always relevant. In relation to the relevance of preferential creditors, it is argued that when a receiver is appointed, he has the obligation and power to deal with all the assets subject to his appointment. The fact that the assets, when realised, may be subject to preferential claims is irrelevant.
Analysis
[19] As to the effect of liquidation upon a receivership, we adopt the following useful summary from Heath & Whale: Insolvency Law in New Zealand:[9]
The scheme of part 16 of the Companies Act is to exclude from the ambit of liquidation property which is subject to a charge. The Act contemplates that secured creditors will operate independently of the liquidation, unless they decide to surrender the security in terms of s 305(1)(c). The definition of “creditor” in s 240(1) makes it clear that secured creditors are excluded except for very limited purposes. Section 248(2) makes it clear that the liquidation does not limit the secured creditors’ rights of enforcement, and s 253 provides that the liquidator’s principal duty is to take possession of the assets and distribute them or their proceeds to “creditors” (which, for this purpose, excludes secured creditors). Similarly, sections 312 and 313, which provide for the payment of creditors by the liquidator, exclude from their ambit secured creditors.
(footnotes omitted.)
[20] We agree with that analysis and it follows with the first argument advanced by Property Ventures that the effect of ss 248 and 253, and the general scheme of the Act, is that charged assets are not included within those assets in respect of which the liquidator owes a duty to unsecured creditors under s 253. We therefore differ from the Associate Judge on this point.
[21] However, s 254 is expressed to have effect notwithstanding “any other provisions of this part” (emphasis added). It expressly confers upon the liquidator a discretion to “carry out any duty or exercise any power in relation to property that is subject to a charge”. We consider that, given the overall scheme of the legislation and the history of this provision, s 254 should be understood as conferring a residual discretion upon the liquidator to take steps to realise assets subject to a charge in certain circumstances. The liquidator certainly is not, as the provision makes clear, always obliged to exercise a power in respect of charged property. There would be no sense in the liquidator doing so in the usual course since most of the benefits of the liquidator acting would flow to the secured creditors. Moreover, for the liquidator to officiously intervene in a proposed realisation without good reason could only reduce the available assets for creditors by increasing the liquidator’s costs (a preferential claim in both the receivership and liquidation). Circumstances will arise however in which a liquidator will need to exercise this power even though the secured creditor has not surrendered its security – for example, where the secured creditor has indicated that it will take no steps to realise the asset, but does not use the s 305 mechanism to surrender the charge (the situation arising in Sintel).[10]
[22] On the other hand intervention by a liquidator in a secured creditor’s realisation of assets subject to charge, for no such good reason, may well entail the exercise of the discretion by the liquidator for an improper purpose – namely generating fees for the liquidator.
[23] The affidavit of Mr Thorn that Property Ventures seeks to rely upon clarifies that the liquidator was not acting officiously – if he did not take steps to recover these debts, the receivers would not have attempted to recover them.
[24] The jurisdiction to receive further evidence on appeal is to be exercised sparingly. The Court must take into account whether the evidence was reasonably available at the time of the first hearing, as well as its cogency and nature.[11] Mr Thorn’s affidavit is certainly not fresh evidence – it was reasonably discoverable and clearly relevant for the first hearing. Although the evidence was reasonably discoverable earlier, there is a discretion to receive it nevertheless.[12] Ultimately every case is to be decided in relation to its own circumstances. In this case, we have decided that we should receive Mr Thorn’s evidence. It is cogent and clearly material. Mr Walker’s evidence was that he had not inquired of the receivers as to their attitude to recovery of these debts. He could do no more than speculate that the receivers had abandoned the claims in favour of the liquidation because no steps had been taken by them to recover the debts. Were we to decline to admit Mr Thorn’s affidavit, the appeal would be resolved on the false basis that the receivers did not support the liquidator’s actions. That would raise issues as to whether the liquidator was using this power for a proper purpose, issues which we know would be hypothetical only, given the receivers’ true attitude. Since the appellants are unlikely to be able to rebut this evidence, the only prejudice receipt of this late affidavit will have caused them is pursuing this appeal on what has transpired to be an erroneous basis. That prejudice can be addressed through the issue of costs.
[25] To conclude on this point, we are satisfied that the Associate Judge was correct in deciding that the liquidator had authority to issue the statutory demand, although we have reached this conclusion by a different route.
Second ground of appeal: genuine or substantial dispute of Spinach Design’s debt
[26] The facts in connection with this debt are as follows. Ms Kristina Buxton is the sole director and shareholder of Spinach Design. She is also the partner of Mr Henderson. The Associate Judge noted that she had been similarly associated with a substantial number of companies linked to Mr Henderson.
[27] The bank account statements of Property Ventures record that on 12 May 2009, Property Ventures made a payment of $12,206.25 to Spinach Design. The liquidator, Mr Walker, says that there is no evidence of Spinach Design being a creditor of Property Ventures in the latter’s records.
[28] In her initial affidavit in support of the application to set aside the statutory demand, Ms Buxton complained that she had asked Mr Walker for a copy of the records to support his assertion that the payment had been made, but that he had failed to give her those records. In a later affidavit she said Spinach Design was incorporated for her own business purposes in 2006, with the intention of undertaking the interior design work for the bars and restaurants in the SOL Square hospitality precinct in Christchurch. Ultimately, she says, Spinach Design did not receive any payment for those services. However its bank account was utilised over the period in question for payments on behalf of other entities, as a trust or clearing account. It was therefore most unlikely that the amounts were paid for the benefit of Spinach Design, and they would more likely have been paid for the benefit of another party. She also said that the banking records and business records for Spinach Design had been seized by police or lost when the building they were stored in was demolished.
[29] Spinach Design also filed two affidavits by Mr David Godden, the former business development manager for Property Ventures. He had been involved in managing the fit out and development of Minx Restaurant and Bar in Lichfield Street (we assume, in the SOL Square development). He says that the Spinach Design bank account was used by Property Ventures for the receipt and payment of amounts necessary to undertake the development. That was done at his initiative because he was concerned that amounts paid into Property Ventures’ accounts would be used for other purposes. He therefore supports Ms Buxton’s claim that the Spinach Design account was used as a clearing account for payments to other companies.
[30] He says the narration “design fees Minx” is consistent with this use of the Spinach Design account. He annexes bank statements for Spinach Design which he was apparently able to locate, and comments:
I recognise many of the parties paid as creditors of Minx Limited. These include FAB Plastics (which constructed domes for light fittings), Williams Hickman (which undertook electrical work for all the SOL Square bars), Layne Watson Plumbing (which installed the plumbing for all SOL Square bars), Sphere Design (which was the architect contracted to design Minx), MS Upholstery (which supplied upholstery for Minx), Adgraphix (which supplied graphic design services and wallpaper for Minx) and Buckly House which supplied furniture for Minx.
High Court judgment
[31] The Associate Judge found that the applicant’s case was short on proof to support its proposition that there was a genuine substantial dispute as to the existence of debt. He said:[13]
It appears clear from the content of the email exchanges on 5 May 2009 that Ms Buxton, as the sole director of Spinach Design, had permitted a situation to develop whereby others were controlling the bank account of Spinach Design. Furthermore, they were using it for the purposes of Property Ventures.
The contemporaneous documentary evidence from the 5 May 2009 exchanges indicates that the purpose of the transfer to Spinach Design was for the purpose of holding Property Ventures’ money outside Property Ventures own bank account. It is clear that it is Property Ventures’ money that it is being talked about.
The late suggestion by Mr Godden (in reply evidence) that the payment by Property Ventures to Spinach Design was then simply paid on to Minx is inconsistent with the contemporaneous record and unsupported by any bank record. Ms Buxton (together with personnel of Property Ventures it seems) are in this litigation the people who are in the position to have peculiar knowledge of the treatment of Property Ventures’ money within the Spinach Design account. Ms Buxton’s apparent criticism of the liquidator for not providing documentation is misplaced. As director she could and should have obtained copies of any bank account records necessary to support in some tangible way one or other of the explanations which Spinach Design was offering. As applicant Spinach Design has failed to provide the material short of proof which is required to support a dispute in this jurisdiction.
[32] The argument on appeal is that the Associate Judge failed to have regard to relevant evidence. This argument is advanced on the basis that the finding that Mr Godden’s explanation “is inconsistent with the contemporaneous record and unsupported by any bank record” makes plain that the Associate Judge did not consider the bank statements annexed to Mr Godden’s second affidavit. Moreover, neither Ms Buxton nor Mr Godden stated in their affidavit evidence that the payment by Property Ventures to Spinach Design was simply paid on to Minx. It is also said that the Associate Judge’s criticism of Ms Buxton for failing to access the banking records of Spinach Design was misplaced, since such records were annexed to Mr Godden’s second affidavit. For these reasons it is submitted that Spinach Design had placed sufficient evidence before the Court to demonstrate a substantial dispute, but this evidence was somehow overlooked by the Judge.
[33] We were advised during the hearing that Spinach Design had settled the debt with the receivers.[14] However the appeal was pursued because Spinach Design seeks to set aside costs awards against it in the High Court, and to recover its costs and disbursements in both that Court, and this.
Analysis
[34] The passages in the judgment referred to by Spinach Design do not support its arguments. The Judge proceeded on the basis that Spinach Design’s accounts were used as Mr Godden and Ms Buxton say, for Property Ventures’ purposes. From this he concluded that the money in question was Property Ventures. He found that there were no bank records to evidence that the money was then simply paid “on to Minx”, by which we understand him to mean, “paid on for the benefit of Minx”, which was Spinach Design’s contention.
[35] We consider that the Judge is correct in this analysis. Ms Buxton’s and Mr Godden’s evidence offers no more than the suggestion of the possibility that this is what the payment was used for. The bank statement that Mr Godden has annexed to his affidavit contains the narration “design fees Minx” alongside the payment from Property Ventures. Notwithstanding Mr Godden’s contention, that narration is inconsistent with the late explanation offered by Ms Buxton and Mr Godden that the payment was to be used to pay third party creditors.
[36] All but one of these payments to third parties referred to by Mr Godden were payments made prior to the receipt of the money from Property Ventures. After that money was received, a payment was made to Ms Buxton ($1,722.60), a payment by cheque for $800 (no narration) and an amount paid some nine days later to Sphere Design. We also note that there were other payments into the account between receipt of the $12,206.25 and the payment to Sphere Design. The bank statements therefore do not show or suggest any connection between the amount paid in by Property Ventures and the amounts paid out by Spinach Design to entities Mr Godden says were Property Ventures’ creditors.
Result
[37] For these reasons we are satisfied that Gibbston Downs’ and Spinach Design’s appeals should be dismissed.
[38] In the normal course the respondent would be entitled to costs on the appeal. However we have decided that costs should lie where they fall on the appeal because
of the significance the respondent’s late filed evidence had to the outcome. That evidence was not fresh and it is likely that, had it been adduced at the initial hearing, the appellants would not have pursued this appeal.
Solicitors:
Canterbury Legal Services Ltd, Christchurch for Appellants
Luke Cunningham & Clere, Wellington for Respondent
[1] After the hearing, we were informed that Messrs Thorn and Downes had given a notice on 6 August 2013 (after the hearing) that they had ceased to act as receivers on 27 June 2013. We were also told that their appointer had assigned its general security agreement and that the new secured party supported the actions of the liquidator. We have not, however, taken into account these post-hearing developments in this judgment.
[2] Gibbston Downs Wines Ltd v Property Ventures Ltd (in rec and liq) [2012] NZHC 3592 [Gibbston Downs]; Spinach Design Ltd v Property Ventures Ltd (in rec and liq) [2012] NZHC 3594 [Spinach Design].
[3] The reasoning on this issue is set out in Gibbston Downs at [42]–[49]. That reasoning was adopted in Spinach Design at [12]–[13].
[4] Gibbston Downs at [47].
[5] At [48]–[49].
[6] At [35]. Re Your Size Fashions Ltd [1990] 3 NZLR 727 (HC) at 735.
[7] At [37] and [40].
[8] Under s 14 of the Evidence Act 2006.
[9] Liesle Theron “The Liquidation Process” in Paul Heath and Michael Whale (eds) Heath & Whale: Insolvency Law in New Zealand (Lexis Nexis, Wellington, 2011) at [16.35(b)].
[10] Sintel-Com Ltd (in liq) v Telecom New Zealand Ltd (2006) 9 NZCLC 264,040 (HC), cited in Gibbston Downs, above n 1, at [40].
[11] Telecom Corp of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 97 (HC) at 103.
[12] Hitex Building Systems Ltd v Wilkinson Building & Construction Ltd [2013] NZHC 913 at [5].
[13] Spinach Design, above n 1, at [41]–[43].
[14] Confirmed in memoranda received after the hearing.
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