Madsen-Ries v Salus Safety Equipment Limited (in liquidation) [2022] NZCA 101 (31 March 2022)

Last Updated: 5 April 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA383/2020 [2022] NZCA 101

	BETWEEN	VIVIEN JUDITH MADSEN-RIES AND HENRY DAVID LEVIN AS LIQUIDATORS OF SALUS SAFETY EQUIPMENT LIMITED (IN LIQUIDATION) Appellants
	AND	SALUS SAFETY EQUIPMENT LIMITED (IN LIQUIDATION) Respondent

CA384/2020
	BETWEEN	VIVIEN JUDITH MADSEN-RIES AND HENRY DAVID LEVIN AS LIQUIDATORS OF GREEN SECURITIES LIMITED (IN LIQUIDATION) Appellants
	AND	GREEN SECURITIES LIMITED (IN LIQUIDATION) Respondent

Hearing:	11 August 2021
Court:	Cooper, Brown and Courtney JJ
Counsel:	N H Malarao and B J Hamilton for Appellants M G Colson QC and K O M Fitzgibbon as counsel to assist the Court
Judgment:	31 March 2022 at 11.00 am

JUDGMENT OF THE COURT

A The appeals are allowed.

B The judgments are set aside.

100. The liquidators’ applications for approval of their remuneration are to be reconsidered by an Associate Judge after the liquidators have availed themselves of the opportunity to present written submissions on their issues of concern in the judgments.

D There is no order for costs.
____________________________________________________________________

Table of Contents

Para no

Introduction [1]
Grounds of appeal [6]
The nature of the appeal [8]
Liquidators’ remuneration – relevant principles [12]
Green Securities Ltd [19]
The liquidators’ application [19]
The High Court judgment [25]
Salus Safety Equipment Ltd [28]
The liquidators’ application [28]
The High Court judgment [37]
A breach of natural justice? [39]
Appellants’ submissions [39]
Submissions of counsel assisting [44]
The nature of the Court’s function [47]
The invocation of the Roslea Path principles [51]
The specific alleged breaches of natural justice [62]
Conclusion [74]
Appropriate relief [76]
Result [80]

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] These two appeals comprise challenges to determinations by Associate Judge Bell on 17 and 18 June 2020 of applications by the appellants (the liquidators) under s 284(1)(e) of the Companies Act 1993 (the Act) for approval of their fees. The liquidators complain a miscarriage of justice occurred by reason of the failure by the Judge to give them notice of, and an opportunity to respond to, certain conclusions which he had reached which were critical of them.
• [2] On 5 May 2010 Green Securities Ltd was put into liquidation on the application of the Commissioner of Inland Revenue and the appellants were appointed as liquidators. On completion of the liquidation on 8 July 2019, they sought the approval of the High Court of their overall remuneration in the sum of $159,500 for liquidation fees (plus GST and disbursements). The Judge declined approval and fixed remuneration at $120,000 (plus GST and disbursements).^[1] The claim for disbursements was reduced by $5,000 plus GST.
• [3] On 13 February 2013 Salus Safety Equipment Ltd was put into liquidation on the application of the Commissioner of Inland Revenue and the appellants were appointed as liquidators. On completion of the liquidation on 26 July 2018, they sought the approval of the High Court of their overall remuneration in the sum of $91,600 for liquidation fees (plus GST and disbursements). The Judge declined approval and fixed their remuneration at $30,000 (plus GST and disbursements).^[2]
• [4] The Judge’s reasons included a number of criticisms which the liquidators contend they were neither informed of nor provided with an opportunity to respond to. Their appeals challenge the Judge’s process as involving a miscarriage of justice. By way of relief they request that their appeals be allowed, the judgments be quashed and the matters be remitted back for determination by a High Court Judge.
• [5] Because there was no respondent below, Mr Colson QC and Ms Fitzgibbon were appointed as counsel to assist the Court on the appeals.^[3]

Grounds of appeal

• [6] The grounds of both appeals may be summarised as follows:

  (a) an error of law and a breach of the principles of natural justice by determining the applications without providing an opportunity to the liquidators to consider, challenge or contradict the Judge’s concerns about the fees;
  (b) an error of law by taking into account evidence which neither a party nor an interested person had adduced; and
  (c) a departure from the Re Roslea Path Ltd (in liq) principles and practice.^[4]

The notices of appeal identified a number of errors of law which are said to have resulted in several errors of fact.

• [7] The appellants filed a list of issues, with which Mr Colson agreed, which was in the following terms:

1 Did the High Court depart from well‑established principles and practice endorsed by the Full Court in Re Roslea Path Ltd (In Liquidation)?

2 In the process followed by the High Court, was the appellants’ right to the observance of principles of natural justice breached? In particular:

(a) Did the appellants have a right to be warned of adverse allegations and potential findings?
(b) If so, were the appellants appropriately warned?
(c) Did the appellants have a right to be provided with an opportunity to be heard on adverse allegations and potential findings?
(d) If so, were the appellants provided with an appropriate opportunity to be heard?

3 Should the judgments subject to this appeal be quashed and the matters remitted back to the High Court?

The nature of the appeal

• [8] At the outset it is important to recognise the unusual and confined nature of this appeal. There is no specific attack on the quantum fixed by the Judge in either case. Mr Malarao acknowledged that it was not inconceivable that the same determination could have been made in the absence of the procedural unfairness of which complaint is made. As he put it, such an outcome was possible but, in his view, not at all likely.
• [9] The liquidators’ complaint is that the process employed by the Judge was fundamentally flawed. As Mr Malarao explained it:

The judgments are not judgments on the basis that the Liquidators simply failed to prove their claim for remuneration to the appropriate standard, and the approved remuneration was written down accordingly. If the judgments had simply reduced remuneration on the basis of insufficient evidence, the Liquidators would have disagreed with such an assessment, but that would have been a separate matter. In these cases the Associate Judge delivered judgments which contain a number of findings that can be described as findings of malpractice or, at least unconscionable behaviour.

• [10] A particular focus of the appeal was the Judge’s criticism in Green Securities of the number of people who had worked on the liquidation, which he viewed as inefficient, and his observation that the approved reduced remuneration removed “padding and inefficiencies” in the claim.^[5] It was apparent that at least one of the liquidators’ objectives in the appeals was to seek to restore their professional reputations and the reputation of their firm.
• [11] However the liquidators did not invite the Court to conduct a rehearing of the applications or to substitute orders approving the amounts originally sought. In Mr Malarao’s words, the only way forward was for the matter to be remitted back to the High Court in order to remedy some of the procedural errors that had occurred.

Liquidators’ remuneration — relevant principles

• [12] A liquidator appointed by the Court is remunerated in accordance with s 276(2) of the Act which allows remuneration to be charged, without Court approval, at not more than amounts fixed or hourly rates prescribed under s 277. If higher rates are sought a prospective application for remuneration must be made and granted. Then at the conclusion of the liquidation what is known as a “retrospective application” is made to the Court under s 284(1)(e) of the Act for approval of the liquidator’s fees.
• [13] In the leading authority, Roslea Path, Heath and Venning JJ described the nature of the Court’s function in fixing a liquidator’s remuneration:^[6]

[102] In fixing a liquidator’s remuneration, the Court is making a determination of the fairness and the reasonableness of what has been charged when measured against the work undertaken and the result achieved. Fair and reasonable remuneration reflects the value of the services rendered to the creditors of the company and, if a surplus were achieved, its shareholders. “Value” is an elusive concept which goes beyond mathematical application of hourly rates to hours spent by individuals involved in administering the company’s affairs.

• [14] They also noted that:^[7]

In seeking retrospective approval, a liquidator must provide sufficient information to the Court for it to make a judgment on whether the amount claimed is fair and reasonable. What constitutes “sufficient” information is a question of judgment for the Court to determine.

• [15] Mr Colson helpfully summarised the principles relevant to the determination of retrospective applications:

  (a) Liquidators are fiduciaries and their fundamental obligation is a duty to account. There is a conflict between the interests of the liquidator (fiduciary) in receiving remuneration and the interest of the creditors (those to whom the fiduciary duties are owed) who bear the cost of that remuneration.
  (b) Liquidators are officers of the Court and are subject to its general supervisory function. They must attend diligently to their tasks and make all proper reports and inquiries. They have the same responsibilities as barristers and solicitors.
  (c) Liquidators must justify their claims for remuneration. They bear the onus in this regard and the benefit of any doubt due to inadequate information must be resolved in favour of the creditors.
  (d) Fixing liquidators’ remuneration requires judicial judgment. It is more akin to an administrative task. It is implicit that the judicial officer can draw on his/her own experience in performing this role.
  (e) In fixing liquidators’ remuneration the Court is making a determination of the fairness and reasonableness of the proposed fees compared to the work undertaken and results achieved. The focus is on the value of services rendered to the creditors of the company.
  (f) The Court will consider whether there has been unnecessary work or over servicing as this would not represent time reasonably expended at a reasonable rate.
  (g) A broad brush approach is acceptable provided that there is an exercise of judicial judgment as opposed to an arbitrary choice of amount.
  (h) The process of fixing remuneration needs to be proportionate. It should not be unduly prescriptive; nor should it unnecessarily add costs to creditors.

• [16] In view of the asserted evidence-related error at [6(b)] above, it is desirable to briefly elaborate upon Mr Colson’s item (d). In Re Medforce Healthcare Services Ltd (in liq), which considered the general principles applicable to liquidators’ remuneration, the High Court viewed the exercise to be undertaken by the court in fixing the reasonable costs of a liquidator as being “similar to that which is undertaken when approving solicitor and client costs or costs for legal aid purposes”.^[8] The applicability of principles relevant to challenges to costs rendered by solicitors was reiterated in Roslea Path.^[9]
• [17] In the course of its consideration of the evidence in Medforce the Court commented that market forces will, to a large extent, determine the reasonableness of liquidators’ remuneration, but further observed that it might be necessary to alter the procedures if it were established that market forces had not controlled inefficiencies which led to other charging.^[10] The Court stated that the Masters (now Associate Judges) who handled the retrospective applications would no doubt become familiar with most of the liquidators and would be able to assess whether they were conducting the liquidations in an efficient manner. Indeed in that case the Court noted that the hourly rate charged by the firm for a particular work function seemed high compared with the rates charged for similar staff by other liquidators.^[11]
• [18] It is this accumulation by the Associate Judges of knowledge of the subject matter and, to a certain degree, the practices of the liquidators, that contributes to the experience to which Mr Colson referred in the performance of the remuneration‑fixing task. Accumulated experience of that nature is not “evidence” in respect of which some disclosure obligation arises. No complaint can be levelled at Associate Judges for drawing on such experience. Rather the issue raised by these appeals concerns the extent of the obligation of an Associate Judge to forewarn liquidator applicants of their proposed determination, particularly if it is critical of their conduct, which is the error noted at [6(a)].

Green Securities Ltd

The liquidators’ application

• [19] On the appellants’ prospective application the order for liquidation fixed the rates of remuneration for them and their staff as follows:

Directors/Liquidators $395.00 - $475.00 (plus GST) per hour

Associates $325.00 - $395.00 (plus GST) per hour

Managers $255.00 - $315.00 (plus GST) per hour

Senior Analysts $215.00 - $260.00 (plus GST) per hour

Business Analysts $165.00 - $215.00 (plus GST) per hour

Administration Staff $ 95.00 - $125.00 (plus GST) per hour

• [20] The appellants’ memorandum of 8 July 2019 seeking retrospective approval reviewed the work undertaken in the course of the liquidation and provided a summary for the hours worked by staff level and the hourly rates which had been applied.

• [21] A supplementary memorandum of 22 July 2019 advised that the Inland Revenue as petitioning creditor had approved a proposed fee structure in the liquidation of up to $159,500 plus GST and disbursements. An Inland Revenue letter confirming that advice was annexed.
• [22] On 9 August 2019 the Judge issued a minute in the following terms:

[2] The Commissioner of Inland Revenue has received $100,500 as preferential creditor, a distribution of 81.8 cents in the dollar. The Commissioner’s total preferential claim is $126,289. The liquidators have appropriately obtained the Inland Revenue Department’s consent to the remuneration claimed. In this case, however, that is not decisive. It is possible that an adjustment to the remuneration claimed by the liquidators may result in the Commissioner’s preferential claims being met in full and funds being available for unsecured creditors. To check against that possibility, I want to check further.

[3] I appreciate that in the first two years of the liquidation, substantial work was required and there were challenging issues in dealing with securities and the receivership. I also accept that there was significant litigation against the director and that time was required before the liquidators could receive a dividend from the director’s bankruptcy. Given the average charge-out rate, ($219/hour) my concern is with the time spent on this liquidation. I ask the liquidators to provide copies of all their reports to their creditors and a print‑out of their time records. I do not want to see the files for the liquidation.

• [23] On 15 August 2019 the appellants filed a supplementary memorandum in reply to the Associate Judge’s inquiry, the body of which simply stated:

2 As requested, attached as schedule A are copies of all reports to creditors and shareholders (except for the first report, which was supplied with my earlier memoranda), and attached as schedule B is a printout of the liquidators’ time records up to 30 June 2019, being the cut off date for the analysis of costs in the memorandum of 8 July 2019.

The printout of the liquidators’ time records up to 30 June 2019 comprised 63 pages, recording in relation to each item of work the date, the identity of the staff member, the time spent and the cost allocated, together with a narrative of the task.

• [24] There was no further interaction between the Judge and the liquidators in the period prior to delivery of the judgment on 18 June 2020.

The High Court judgment

• [25] At the date of liquidation the company, which operated a hair salon, was still trading. The liquidators decided to keep the business operating with a view to a sale as a going concern. However, as the Judge noted, that was overtaken by a secured creditor putting the company into receivership.^[12] The receivers kept the business operating and sold it for $680,000, which provided a surplus for unsecured creditors of $206,724.
• [26] After noting the approved hourly rates of remuneration and the fee breakdown^[13] the Judge succinctly summarised the outcome of the liquidation:

[3] Realisations in the liquidation came to $321,135. The main receipts were $260,724 paid by receivers, $95,751 on a distribution from the bankruptcy of the director of the company, $10,000 from a pre-liquidation bank account, and interest. The liquidators incurred legal fees of $56,123 (including GST). Other expenses are unremarkable. The Commissioner of Inland Revenue is the major creditor not only for preferential taxes but for other unpaid taxes. Her claim as preferential creditor is for $114,072. Non‑preferential unsecured creditors came to $470,606, giving total creditors of $593,678. The Commissioner has been paid her costs on the liquidation application in full and has received 81.08 cents in the dollar for her preferential claim. If the liquidators’ remuneration claim is upheld in full, there will be no funds for unsecured creditors.

• [27] The appeal focuses on a number of observations made by the Judge, including with reference to a claim against the director of the company for breach of director’s duties. The specific comments concerning that litigation are italicised in the paragraph below:

[21] The liquidators sued for breaches of director’s duties instead of for the overdrawn funds. Normally it is easier to prove a claim for overdrawn funds. Often summary judgment may be sought for such a debt claim. It is not clear that there were any difficulties with such a claim in this case. Moreover, the liquidators made their case more complex than it needed to be. They sued for breaches of three separate duties under the Companies Act, when they needed to sue for only one. Any of them would have done. The piling on of causes of action is a heavy-handed, “throw the book at him” approach. It is also inefficient in increasing work by the liquidators and their lawyers, as well as the defence and the court, without any commensurate benefit. Spending time and money on two more causes of action was excessive and unnecessary. The legal fees incurred in obtaining judgment against Mr Just come to $30,296 (plus GST). With a slimmer case, the fees would be less. $5,000 (plus GST) would be saved.

(Footnotes omitted.)

Salus Safety Equipment Ltd

The liquidators’ application

• [28] In anticipation of their appointment as liquidators the appellants signed a memorandum of consent to act and sought the Court’s approval for rates of remuneration as follows:

Partners/Liquidators $395.00 - $475.00 (plus GST) per hour

Associates $325.00 - $395.00 (plus GST) per hour

Managers $255.00 - $315.00 (plus GST) per hour

Senior Analysts $215.00 - $260.00 (plus GST) per hour

Business Analysts $165.00 - $215.00 (plus GST) per hour

Administration Staff $95.00 - $125.00 (plus GST) per hour

• [29] The appellants acknowledged that any order approving the rates of remuneration would be subject to the requirement that at the conclusion of the liquidation they would make an application under s 284(1)(e) of the Act to fix their overall remuneration.
• [30] The memorandum seeking approval of 26 July 2018 succinctly reviewed the work undertaken in the course of the liquidation and provided a summary of the hours worked by staff level and the hourly rates which had been applied:

• [31] A supplementary memorandum on 30 July 2018 advised that the Inland Revenue as petitioning creditor had approved a proposed fee structure in the liquidation of up to $91,600 plus GST and disbursements. An Inland Revenue letter confirming that advice was annexed.
• [32] On 2 August 2018 the Judge issued a minute in the following terms:

[1] The liquidators have applied for approval of their remuneration of $91,148.00 excluding GST and disbursements.

[2] The liquidators have referred their application to the Commissioner of Inland Revenue, both a preferential and non-preferential creditor. The Commissioner approves the remuneration claimed. All preferential claims were paid in full. There was a distribution to non-preferential creditors of 38 cents in the dollar.

[3] Notwithstanding the consent [of] the Commissioner of Inland Revenue, I have queries as to the remuneration claimed. It is appropriate to enquire, as there are other unsecured creditors.

[4] There is no issue as to the rates of remuneration claimed. Moreover, there seems to have been appropriate delegation with the bulk of the work carried out by a business analyst at a rate varying between $165.00 and $215.00 per hour. As the liquidators point out, the average recovered rate is $208.86 per hour (excluding GST) which is at the lower end of the range.

[5] My query is as to the number of hours spent on the job — about 420. The work undertaken by the liquidators appears to be standard steps expected in a liquidation such as this. The main recovery was a legal settlement of $215,000, which was obtained without instructing lawyers or issuing proceedings. I appreciate that the settlement was paid over time, and the liquidators had to monitor repayment. All the same, it is not clear that over 400 hours was required for this liquidation. I would appreciate more information from the liquidators. In particular, I ask for a narrative of the steps taken and copies of time recordings.

• [33] On 14 August 2018 the appellants filed a supplementary memorandum in reply to the Judge’s inquiry which explained the steps taken at the various stages in the liquidation, touching only briefly on recovery processes, and annexed a 33 page printout of the firm’s time records for Salus Safety Equipment together with a narrative of the work undertaken.
• [34] On 29 August 2018 the Judge issued a further minute in the following terms:

[2] I would also be grateful if the liquidators could address these matters:

[a] What is the explanation for the relative lack of activity during 2014?

[b] Given the requirement to consider claims as soon as practicable (Companies Act, s 304(3)) why were the claims considered only in 2016?

[c] About 23 per cent of the time, 103 hours, is for “cash management”. Why has “cash management” taken so much time?

[d] 24 people worked on the file. Why so many?

[3] I would be grateful to hear from the liquidators in due course.

• [35] On or about 8 October 2018 the liquidators provided their files comprising three boxes of documents. They also filed a further supplementary memorandum which responded to the Judge’s queries (c) and (d) as follows:

5 I confirm that over 103 hours was spent on ‘cash management’. Attached as Appendix B is a print out of the cash management time recorded. I have looked at the narrations and believe the amount of time required was largely the result of three factors:

(a) In addition to dealing with initial asset sale proceeds and debtor proceeds, the collection of the legal settlement with a scheduled 4 payments per month created relatively frequent requirements over a lengthy period to deal with this assignment on cash matters, not just in dealing with the deposits, but also in transfers between accounts, trust and call account reconciliations and GST returns.
(b) Sound controls over trust account cash, including by way of separation of duties, independent review, and prevention of sole signatory withdrawals, requires a level of multiple handling that would be regarded as unnecessary in relation to other issues.
(c) Where we have a payment plan in place, close monitoring is critical so that any defaults are actioned as soon as possible. The narrations ‘update payment plan’ shows the staff updating the deposit against the payment plan records as often as four times a month to make sure no further action is required.

6 There are two significant reasons why so many people worked on the file:

(a) The firm as a whole, and the Auckland Recovery practice as a specialist unit, have developed specialisations and work practices which allow them to make good use of the size of both. Specialisation can either [be] by skill, such as computer forensics, or by roles such as administrative support. The latter type of specialisation is more relevant to the number of people who worked on this assignment. We make high use of tools and processes to allow jobs to be split up. A person who specialises in Companies Office lodging or GST returns is significantly quicker and more reliable than a person at the same level who does not. Some people are additional solely to create separation and independent approval in cash processing as noted above. A matter which arises on the liquidation which is new to the person on that liquidation is often best resolved by obtaining the input of a team member with specific experience in that type of matter.
(b) The second factor is the length of time of the liquidation, combined with the size of the team. Over the relevant 5 year period there were some personnel changes in the team, including promotions and resignations. There will also have been times when a staff member was away or sick. Again, we make high use of tools and processes to minimise the impact on the assignment of these events. The most important factor is a professional one, of making sure work done is properly recorded and filed, and where required is supported with appropriate workpapers showing why something was done and referencing relevant supporting evidence. Once a task has been completed in this manner, it does not need to be re-done.

• [36] There was no further interaction between the Judge and the liquidators in the period prior to delivery of the judgment on 17 June 2020.

The High Court judgment

• [37] Having noted the approved hourly rates of remuneration^[14] and the liquidators’ fee breakdown,^[15] the Judge gave the following summary of the liquidation:

[5] Realisations in the liquidation came to $232,911. The main receipts were $215,007 paid by the directors of the company, $8,945 for receivables and $6,484 for sale of assets. The expenses incurred by the liquidators are unremarkable. The Commissioner of Inland Revenue is by far the major creditor. She is a preferential creditor for the costs of the liquidation application ($3,834) and for preferential taxes ($93,376). She is also owed over $93,951 for non-preferential taxes. There were only four other unsecured creditors, of which the highest was $8,300. The Commissioner has been paid her preferential claims in full. Unsecured creditors have been paid 38.6 cents in the dollar.

• [38] One focus of the appeal is a number of statements of the Judge in the concluding paragraphs of the judgment which we set out in full, with the relevant statements italicised:

[18] These matters can be noted:

(a) much of the work was routine for the liquidation of a small contracting company;
(b) apart from resolving the Commissioner’s claim, dealing with creditors and their claims did not throw up any significant issues and should not have led to unusual amounts of work;

(c) the liquidators did not incur any unusual expenses;

(d) the major recovery in the liquidation, the successful collection from the directors under the settlement, went much more smoothly than is often seen in such cases;
(e) the liquidation ran for five years, although it was not large or complicated;
(f) the time recorded, over 400 hours, is high for such a liquidation;
(g) the fees are high for such a liquidation;
(h) the average hourly charge-out rate is low in comparison with claims by other liquidators carrying out similar liquidations with similar fee structures. An average between $200 and $300 per hour (exclusive of GST) is more common;
(i) the affairs of Salus Safety Equipment Ltd were not complicated; and
(j) the liquidation ran smoothly, especially given the co-operation of the directors.

In these circumstances, the liquidators’ remuneration claim is out of kilter with what I see in comparable cases.

[19] The liquidators rely on their itemised attendances in their time records to justify their proposed fees of $91,148. I do not, however, accept that that provided fair value to the creditors. The liquidators have recorded large amounts of time on routine tasks. That can be seen in the claim for 103.4 hours on cash management and 77.5 hours on statutory obligations. Under those categories, the liquidators have charged in 6 minute units for routine clerical work. These matters are generally absorbed as part of the costs of running an insolvency practice and are covered by the rates approved for liquidators, associates and analysts. These charges appear to be padding. The liquidators say that it was necessary to monitor payments by the directors. But that explanation does not account for the many hours allocated to “cash management”. Similarly, it is hard to see the justification for the 77 hours claimed for statutory obligations. By and large liquidators’ statutory obligations involve advertising the liquidation, dealing with tax aspects of the liquidation such as GST, the initial report to creditors (there was no meeting of creditors), and reporting to creditors every six months. The reports to creditors are routine and follow a standard format, giving updates since the last report.

[20] If this liquidation had been given to a smaller insolvency practice, I am satisfied that the liquidation could have been completed in shorter time. Time would not have been lost during 2014. The same results would be achieved with less time on the job. The average hourly rate would be higher but the overall fees would be lower. That would give more value to creditors. I assess that a more efficient insolvency practice would have completed this liquidation with the same results but with fees of $30,000. I do not consider that these liquidators’ claims for more than that count as value to the creditors.

A breach of natural justice?

Appellants’ submissions

• [39] The thrust of Mr Malarao’s argument was that there was significant procedural unfairness in the way in which the Judge determined the applications. Mr Malarao drew upon the analysis of Tipping J in O’Regan v Lousich.^[16] That case concerned comments made by a Judge of the Māori Land Court critical of the deponent of an affidavit who was neither called for cross‑examination nor present at the hearing. As Mr Malarao put it, the crux of the liquidators’ complaint was reflected in the following proposition of Tipping J:^[17]

The public are entitled to take the view, and do take the view, that if a Judge criticises someone in a judgment the Judge has carefully weighed the evidence after giving the person criticised an opportunity to be heard.

• [40] Mr Malarao accepted that the requirements of natural justice are context‑specific, citing the observations of Winkelmann J in Carroll v Auckland Coroner’s Court that, in determining whether natural justice has been complied with, the courts look at the matter in the round to determine whether the process was fair.^[18] Mr Malarao also invoked Re Royal Commission on Thomas Case where this Court noted that natural justice requires that interested persons be afforded a fair opportunity to be heard and address prejudicial matters.^[19] While recognising that applications to fix liquidators’ remuneration are not traditional “plaintiff v defendant” proceedings, Mr Malarao argued this made it more, not less, important that “basic natural law principles” were followed by the Judge in determining the applications.
• [41] Indeed Mr Malarao prefaced his natural justice argument with a substantial discussion of the Roslea Path procedure, in the course of which he advanced the following contentions:

  (a) the liquidators were expecting, as contemplated in Roslea Path, approval of their remuneration with “a minimum of inquiry”;
  (b) because the Judge’s propositions and the evidence to which he referred were untested, his findings strayed into the territory of being broad brush and inferential; and
  (c) in embarking on “a comprehensive and wide inquiry”, the Judge appeared to have assumed the role of an expert assessor.

• [42] The liquidators’ primary complaints were identified as follows:

  (a) The Associate Judge had no “evidence” upon which he could have made the judgments he did. Or, at the very least, the “evidence” which the Associate Judge used to compare and find against the Liquidators is (and remains) unknown to the Liquidators.
  (b) The Liquidators should have been notified of the possible adverse determinations the Associate Judge was contemplating making against them.
  (c) The Liquidators were not provided with the opportunity to answer the Associate Judge’s complaints.
  (d) [These] findings by the Associate Judge extended beyond simple confirmation of remuneration (and write downs) to matters intensely personal to the Liquidators and their practice.

• [43] He explained that the liquidators consider they have been denied the opportunity to:

  (a) categorically deny the inference of fraud by the Associate Judge in the comment that their fees were “padded”;
  (b) review, or at least have put to them, the comparative evidence the Associate Judge relied upon in determining that the Liquidators’ fees in these two liquidations were out of kilter or disproportionate to unnamed competitor insolvency practices, especially with regard to their style and efficiency;
  (c) comment on the evidence upon which [the Judge] based his determination (being the comparative evidence to other liquidation practices);
  (d) suggest the appointment of a Court appointed expert to assist the Court in determining the appropriate figure at which to fix the remuneration; and
  (e) oppose, in the case of Green, the reduction of a disbursement expense which the Court did not have jurisdiction to disallow.

Submissions of counsel assisting

• [44] Mr Colson likewise noted the fluid and context-specific nature of natural justice, drawing attention to the Supreme Court’s observation in Dotcom v United States of America that the question is what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.^[20] Acknowledging that natural justice requires that a party affected by an adverse finding by a decision-maker be given notice and an opportunity to be heard, Mr Colson emphasised that what “notice” and an “opportunity to be heard” mean varies significantly depending on the particular circumstances and the nature of the adverse comments made. He submitted it is insufficient to simply assert that natural justice has not been adhered to without considering what requirements are triggered by the particular circumstances of the case.
• [45] Drawing on a number of authorities^[21] he contended that this Court must first determine what standard of natural justice applies in the context of liquidators’ remuneration assessments before making a finding as to whether those standards have been breached. He emphasised that in dealing with one of its officers, the Court can draw on its own experience and judgment. It is performing more of an administrative task than the usual judicial role. He further observed that such determinations need to be dealt with in a swift and cost‑effective manner due to the financial impact on creditors (who will ultimately pay the price if proceedings are lengthy) and because of the sheer number of such applications.
• [46] Mr Colson contended that the appellants’ complaints proceeded on a misunderstanding of both the nature of the task being undertaken by the Judge and the relationship between liquidators and the Court. Mr Colson also observed that the appellants’ complaint related to the language chosen by the Judge rather than the substantive outcome. He advanced arguments in rebuttal of each of the liquidators’ four primary complaints,^[22] albeit engaging with them in what he described as a general way.

The nature of the Court’s function

• [47] It is common ground that both the application of natural justice and the scope of what it requires are context-specific. The context of an application for approval of liquidators’ remuneration is substantially different from the normative adversarial scenario. As Roslea Path explained, on such an application the Court is dealing with one of its own officers whom it has appointed. In fixing a sum that it is reasonable for a liquidator to retain by way of remuneration the Court is exercising an inquisitorial jurisdiction.^[23]
• [48] The liquidator bears the onus of establishing that the claimed remuneration is reasonable. The benefit of any doubt consequent on the inadequacy of the information provided should be resolved in favour of the creditors.^[24] As the Court explained in Roslea Path:^[25]

The need to put the onus on a liquidator arises from his or her position as a fiduciary, an officer of the Court, the information vacuum (so far as a creditor or shareholder is concerned) and the requirement for the Court to be satisfied that the remuneration is reasonable.

The public policy reason for requiring Court sanction is to protect creditors who may not, because of the likely return to them, have a sufficient incentive to challenge the legitimacy of the remuneration claimed.^[26]

• [49] In the first ground of each of the appellants’ notices of appeal, attention was drawn to the fact that no hearing was held prior to the release of the judgments. It was not explicitly suggested that the Judge was obliged to hold hearings on the applications. However the liquidators’ submissions contained multiple references to a hearing as a means of providing one avenue by which the liquidators could have been afforded the opportunity to be heard on the Judge’s concerns.
• [50] Where, as will be usual, no party registers opposition to a liquidator’s application, we consider that the need to convene an oral hearing will be rare. We do not consider the circumstances of the present case were such that a hearing was required. Assuming that the liquidators were made aware of matters in respect of which they were entitled to have notice, providing them with the opportunity to file memoranda and, if necessary, affidavits would have afforded an adequate opportunity to respond.

The invocation of the Roslea Path principles

• [51] The liquidators’ main complaint is that the Judge was obliged to give them a specific opportunity to address his concern that the fees were too high for the work done. In aid of that contention they placed emphasis on various features of the Roslea Path principles. It is convenient at the outset to address that theme and discuss the principles which have been invoked.
• [52] As noted above, it was the liquidators’ expectation that their remuneration would be approved with a minimum of inquiry. This was the tenor of Mr Malarao’s initial response to a question during the course of argument as to what would need to have transpired in order to avoid the present challenge to the judgments.
• [53] In Roslea Path the Court explored how the process for the approval of retrospective applications could be streamlined.^[27] The Court recognised that liquidators are entitled to a consistent approach which provides a satisfactory degree of predictability about what they need to provide to the Court to justify their claims.^[28] Observing that liquidators could take greater responsibility for disclosure of relevant information to creditors and shareholders during the course of the liquidation, the Court referred to the first and subsequent reports which are required to be provided under s 255 of the Act. The Court explained:

[151] Section 255 does not limit the information to be included in the report. It prescribes minimum requirements. It is open to a liquidator to disclose voluntarily, in the second and subsequent reports, the amount of fees charged and the largest components of them. The liquidator could also disclose voluntarily the ability of any creditor or shareholder to challenge remuneration received pursuant to any prospective order, under s 284(1)(e). The right to seek review arises “in respect of any period”.

[152] If disclosure of that type were made and no steps had been taken by a creditor or shareholder to challenge remuneration by the time the retrospective application were made, we consider that the Court could properly approve the remuneration charged, without the need for detailed information. The other side of the same coin is that, if disclosure of that type has not been made on a regular basis, it is more likely that the Court will require the liquidators to provide information of the type contemplated by Medforce 1 to justify the claimed remuneration.

[153] Those who elect to make full disclosure will get the benefit of prompt resolution of their application to fix remuneration (absent any objection) with minimal cost. Those who elect not to provide that level of disclosure will, in effect, choose to subject themselves to a more rigorous examination of the fees charged, to satisfy the Court that the remuneration is reasonable. The choice is for each liquidator to make.

The liquidators’ submissions focussed on the summary of conclusions at [187(c)] of the Roslea Path decision where, referring to its having authorised a modified procedure based on a voluntary disclosure regime, the Court stated that if no challenge were brought by the time the retrospective application was made, the court “is likely to approve fees charged with a minimum of inquiry”.

• [54] While the modified procedure was plainly directed at achieving the predictability and pragmatism emphasised in the judgment, even where there is no challenge to the liquidator’s remuneration this does not absolve the Court from the obligation to be satisfied that the remuneration approved reflects the value of the services rendered to the creditors of the company. While it was envisaged that the streamlined procedure would expedite many applications, it is clear in our view that it was not a rubber stamp which precluded further judicial consideration in appropriate cases. Hence the liquidators’ complaint cannot simply be that their expectation of a minimum of inquiry was not fulfilled. The gravamen of their appeal is that they were not adequately informed of the nature of the Judge’s concerns despite the disclosures they made.
• [55] The liquidators then focused on the Judge’s resort to his experience in determining prior applications. Noting the absence of challenge to their applications by any creditor or shareholder and the support of the majority creditor, Inland Revenue, the liquidators submitted it was fundamentally unfair to have their applications assessed against evidence that no one had adduced and of which they had no knowledge. They submitted that at a minimum they should have had access to the evidence or the propositions emerging from the evidence against which the Judge was measuring their applications. If such evidence had been put to them in at least generalised terms they would then have had the opportunity to explain or distinguish it.
• [56] The liquidators went on to implicitly criticise the extent of the Judge’s inquiry, contending in reliance on Roslea Path that, given the volume of documentation provided to the Court and the length of time which elapsed before the judgments were delivered, it would have been more expedient for the Judge to have appointed an assessor. Had he done so, the liquidators submitted, it was unlikely that he would have erred procedurally given the clear direction in Roslea Path that liquidators are to be involved in the assessor process.
• [57] The relevance of the liquidators’ criticisms to the complaint of breach of natural justice was explained in their submissions in this way:

5.15 In the judgments subject to this appeal, the Associate Judge embarked on a comprehensive and wide inquiry. In a way, the Associate Judge seems to have assumed the role of expert assessor and in that role, used evidence from other liquidation practices (unnamed) and compared that to evidence against the documentation provided by the Liquidators. Then, in the role of Judge, commented on the Liquidators’ conduct in a manner that is likely to be interpreted by the commercial community and members of the public as, at worst, findings of fraud and, at best, incompetence. Meanwhile, the obligation to provide the Liquidators an opportunity to be heard appears to have been overlooked.

• [58] In Roslea Path the Court considered that the use of an assessor might be appropriate in the rare case where it is inexpedient for an Associate Judge to embark upon a lengthy consideration of a substantial number of documents. However the point was made that the fact that an assessor’s costs would need to be borne by the assets of the company in liquidation militates against the indiscriminate use of that process.^[29] It could not seriously be suggested that the present applications warranted the appointment and associated cost of an assessor.
• [59] Nor was the Judge precluded from undertaking a careful inquiry into the applications given his manifest concern about the level of remuneration sought and the perceived inefficiencies arising from the substantial number of people who had been involved in the liquidators’ file. We agree with Mr Colson’s submission that the Judge was entitled to have regard to his experience gained from approving remuneration in other liquidations. As explained at the outset,^[30] that accumulation of experience, or what might be described as the Court’s institutional knowledge, is not “evidence” which a Judge is required to provide to liquidators in the discharge of a natural justice obligation. It is important to recognise that the natural justice obligation relates to unfavourable views which a Judge may form rather than to the experience upon which the Judge has drawn in forming the view that the level of remuneration sought to be approved is not fair and reasonable.
• [60] We do not accept what we understand to be the liquidators’ contention that the nature of the Court’s function in approving their remuneration application required an enhanced or more strict natural justice obligation. Satisfying the Court that the remuneration sought was fair and reasonable is the liquidators’ obligation. The provision of information is a one-way street. The most that could have been required of the Judge was to inform the liquidators of his concerns or provisional views about their applications, informed by his prior experience, in order that they might remedy any information shortfall by filing further memoranda or evidence. The obligation to forewarn a liquidator will not arise in every case where the Judge remains unsatisfied that the remuneration sought to be approved is not fair and reasonable. Whether the obligation is triggered will depend on the individual case. However the need to inform the liquidator of a Judge’s provisional view would likely arise where either the liquidator could not reasonably anticipate the reason for the provisional view, or where the Judge has formed a significantly critical view of the liquidator’s conduct and intends to record that in the determination of the application.
• [61] We turn to consider the liquidators’ specific natural justice complaints.

The specific alleged breaches of natural justice

• [62] The liquidators’ foremost concern was the reference in both judgments to “padding”:

  (a) in Salus Safety Equipment, the statement that charges for large amounts of time on routine tasks appeared to be padding;^[31] and
  (b) in Green Securities, the concluding statement that the figure for remuneration awarded in the sum of $120,000 (exclusive of GST and expenses) “takes away padding and inefficiencies” in the liquidators’ claim.^[32]

• [63] In reliance on his own Google search Mr Malarao submitted that synonyms for “padding” were accounting fraud, cheating and theft. Mr Colson made a general submission that the Judge was not accusing the liquidators of fraud but was simply explaining that he did not think they had delivered value for money and that the claimed remuneration included unnecessary charges.
• [64] It may be that in the particular context where the Judge adopted the term “padding” he had in contemplation the phenomenon of “over-servicing”, a term mentioned in Roslea Path as including both work undertaken unnecessarily and work undertaken by persons of inappropriate seniority having regard to the level of training and experience required.^[33] However Mr Malarao submitted that “padding” carries a substantially more pejorative flavour, the use of which would be likely to cause people to infer the fact of fraudulent conduct.
• [65] We accept that is an available meaning in this context. We note that the definitions of “pad” in the Oxford English Dictionary include: ^[34]

To extend or increase (an official list, expense account, claim for payment etc) with unauthorised or fraudulent items.

The examples in the commentary to “padding” include an extract from The Times newspaper referring to delegations having submitted “a variety of inflated expense statements ranging from high living to outright padding of the bills”.^[35] Similarly, Black’s Law Dictionary provides a slang definition of the verb “pad” as overstating the number of billable hours worked by a lawyer, paralegal or similar.^[36]

• [66] Given the pejorative tenor of the word, we consider that the Judge should have forewarned the liquidators that he intended to characterise their billing practices in such a manner. While the liquidators would have apprehended that there was some level of judicial discomfort with the amount of the remuneration orders sought, they had no reason to suspect that the structure of their fees might be criticised in that fashion. In our view a breach of natural justice occurred through the Judge omitting to forewarn them of the view he had formed.
• [67] The liquidators’ second particular concern was the implication that their practice was inefficient. In Salus Safety Equipment this point was made in the statements to the effect that if the liquidation had been given to a smaller insolvency practice the Judge was satisfied it would have been completed in a shorter time^[37] and the observation that the remuneration claim was “out of kilter” with what the Judge had seen in comparable cases.^[38] In Green Securities the Judge referred to the large number of persons who had worked on the liquidation, listing their names in a footnote.^[39] The Judge stated that a liquidation of the size in question did not require so many people working on it and there would have been greater efficiencies with a smaller team.^[40]
• [68] Mr Colson submitted that that conclusion was open to the Judge on the analysis of the time records which he undertook. It was also entirely consistent with similar criticisms made in Roslea Path where the Court observed:^[41]

[228] However, standing back and looking at the matter overall, we consider there is force in Mr Brown’s criticism that there was a degree of unnecessary duplication, in that up to 31 different people had charged time to the liquidation. Even allowing for Mr Weir’s explanation that the vast majority of work was carried out by six people, on his figures approximately 12 per cent of the work was carried out by those other 25 people. It is inevitable that there would have been duplication of effort and time spent updating staff where so many people were involved.

• [69] Our conclusion on this issue differs between the two appeals. In Salus Safety Equipment we consider that the Judge clearly registered his concern at the number of people (24) who had worked on the file. The liquidators realised this and responded in detail in their supplementary memorandum of 8 October 2018. Plainly that explanation did not entirely satisfy the Judge but that does not mean that there was a want of natural justice by a failure to signal a concern and provide an opportunity to respond to it.
• [70] In Green Securities, however, where significantly more people were involved in working on the file (34) and the Judge was sufficiently exercised to list all their names in a footnote to the judgment, the Judge did no more than indicate in his 9 August 2019 minute that he had a concern with the amount of time spent on the liquidation. Unlike in Salus Safety Equipment, once he had considered the liquidators’ supplementary memorandum of 15 August 2019 the Judge did not issue a further minute specifically noting his concern about the number of staff engaged. On the basis of the Judge’s feedback, the liquidators could not reasonably have anticipated that the Judge would reach the conclusion that the size of the liquidation did not require so many people working on it and that there would be greater efficiencies with a smaller team. Consequently in Green Securities we consider that there was a failure to forewarn the liquidators of the Judge’s significant concern, amounting to a breach of natural justice.
• [71] So far as the further grounds of complaint are concerned, we do not consider that there is any proper basis for criticism of the Judge in failing to inform the liquidators that he considered that their fees were high for such a liquidation^[42] or that the amount of time spent on the liquidations was high.^[43] Nor do we consider that there is any ground for objection concerning the conclusions in Salus Safety Equipment that the remuneration claim was “out of kilter” with comparable cases^[44] and that the liquidators’ fee did not provide fair value to the creditors.^[45] If the liquidators’ contentions in that respect were accepted, the effect would be to require the Judge to give notice and invite a response in almost every instance where the liquidators had failed to satisfy the Judge that their proposed remuneration was fair and reasonable. That would undermine the efficacy of the modified procedure and in significant measure displace the liquidators’ onus.^[46]
• [72] However there are two further respects in which we consider that the Judge should have alerted the liquidators as to his concerns. First, in both decisions the Judge made observations about what he considered was the accepted practice around charging for administrative costs. In Salus Safety Equipment he stated that administrative costs are generally absorbed as part of the costs of running an insolvency practice and are covered by the rates approved by liquidators, associates and analysts.^[47] In Green Securities he concluded it was unreasonable for the liquidators to charge separately for the work of administrative workers and that those costs ought to properly have been absorbed within the charge out rates of professional staff.^[48] Particularly in light of the fact that the approved hourly rates for both liquidations included a category for administration staff, and that the fact that those approved hourly rates were noted without comment in both judgments, we consider that it was incumbent on the Judge to inform the liquidators of his view and provide them with an opportunity to respond.
• [73] The second further issue concerns the Judge’s observations in Green Securities about the over-complexity and excessiveness of the litigation which the liquidators pursued against the director for breach of his duties.^[49] The Judge gave no indication that he held these concerns. On the contrary, in the only minute issued in the matter of Green Securities on 9 August 2019 the Judge stated:

I also accept that there was significant litigation against the director and that time was required before the liquidators could receive a dividend from the director’s bankruptcy.

• [74] The liquidators could not have reasonably anticipated the Judge’s view of the way in which that litigation had been structured. Consequently they did not have the opportunity of justifying their decision to pursue the litigation in the manner they did, nor to object to the validity of the Judge’s deduction from the legal fees of $5,000 plus GST. Mr Colson properly acknowledged that both Medforce^[50] and Roslea Path^[51] state that the Court can only review liquidator remuneration, not expenses or disbursements.

Conclusion

• [75] We have rejected the liquidators’ contention that the scope of the natural justice obligation in the context of a remuneration approval application is magnified in view of the Roslea Path practice. We have also rejected the proposition that the Court has an obligation to provide to the liquidators “evidence” in the form of the Judge’s experience with prior liquidations which have informed the Judge’s consideration of the value of the work undertaken in liquidations of various sizes.
• [76] However we accept the liquidators’ contention that, in relation to the specific matters discussed above,^[52] there was a failure of natural justice as a consequence of the Judge’s omission to inform the liquidators of his specific concerns. Consequently the appeals are allowed to that extent.

Appropriate relief

• [77] Rule 47 of the Court of Appeal (Civil) Rules 2005 provides that all appeals are to be by way of rehearing. On a general appeal the appeal court has the responsibility of arriving at its own assessment of the merits of the case.^[53] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court. If its opinion is different from the conclusion of the body appealed from, then the decision under appeal is wrong in the only sense that matters.^[54] However in the present case, while requesting that their appeal be allowed, the liquidators seek an order that the judgment be “quashed” and a direction that the matter be remitted back for hearing by a High Court Judge.
• [78] The reference to the quashing of the judgment appears to derive from the authority on which Mr Malarao primarily based his argument, O’Regan v Lousich,^[55] where Tipping J made an order that an offending passage in a decision of the Māori Land Court be brought up into the High Court and there quashed. However that proceeding was a judicial review of a lower court. Judicial review is not available in relation to decisions of the High Court. Nevertheless the argument presented on appeal had parallels with an application for review. Not only did the appellants not pursue a rehearing, they did not seek to place before this Court the information which they would have wished to provide by way of riposte to the observations of the Judge which attracted their criticism.
• [79] Although it is an unusual course on appeal, we accept that it is open to this Court to allow an appeal for the purpose of remitting a proceeding to the High Court for further consideration in light of further material which, for whatever reason, is not before this Court on appeal. Given our findings we consider that it is appropriate to make such orders on these appeals in order that the applications can be reconsidered once the liquidators have made a submission to the Court on the issues in respect of which they were not afforded an opportunity to respond.
• [80] We consider that once the liquidators have availed themselves of that opportunity, then their applications should be considered afresh by an Associate Judge. We do not accede to the liquidators’ request that such reconsideration be by a High Court Judge. The subject of approval of liquidators’ remuneration is one that is within the specific expertise of the Associate Judges.

Result

• [81] We make the following orders:

  (a) The appeals are allowed.
  (b) The judgments are set aside.
  (c) The liquidators’ applications for approval of their remuneration are to be reconsidered by an Associate Judge after the liquidators have availed themselves of the opportunity to present written submissions on their issues of concern in the judgments.
  (d) There is no order for costs.

Solicitors:
Meredith Connell, Auckland for Appellants

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^[1] Commissioner of Inland Revenue v Green Securities Ltd (in liq) [2020] NZHC 1371 [Green Securities].

^[2] Commissioner of Inland Revenue v Salus Safety Equipment Ltd (in liq) [2020] NZHC 1368 [Salus Safety Equipment].

^[3] In a Minute of 5 August 2021 the Associate Judge ruled that the liquidators’ applications were not interlocutory applications for the purposes of s 56 of the Senior Courts Act 2016 and hence leave to appeal was not required, a conclusion which we endorse.

^[4] Re Roslea Path Ltd (in liq) [2013] 1 NZLR 207 (HC).

^[5] Green Securities, above n 1, at [27] and [30].

^[6] Roslea Path, above n 4.

^[7] At [99].

^[8] Re Medforce Healthcare Services Ltd (in liq) [2001] 3 NZLR 145 (HC) at [33].

^[9] Roslea Path, above n 4, at [103]–[104].

^[10] Re Medforce Healthcare Services, above n 8, at [39].

^[11] At [41].

^[12] Green Securities, above n 1, at [11].

^[13] At [2].

^[14] Salus Safety Equipment, above n 2, at [2].

^[15] At [3].

^[16] O’Regan v Lousich [1994] NZHC 787; [1995] 2 NZLR 620 (HC).

^[17] At 631.

^[18] Carroll v Auckland Coroner’s Court [2013] NZHC 906, [2013] NZAR 650 at [35]. Also cited by the appellants were Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11] and Graeme Martin Contracting Ltd v Disputes Tribunal [2018] NZCA 328, [2018] NZAR 1636 at [37].

^[19] Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 258. Also cited by the appellants were Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 465 and Dow v Royal Commission on the Pike River Coal Mine Tragedy [2012] NZHC 2404 at [101].

^[20] Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].

^[21] Quantum Laboratory Ltd v Dunedin District Court [2008] NZHC 746; [2008] 2 NZLR 541 (HC); Hampton v District Court at Christchurch [2014] NZHC 1750, [2014] NZAR 953; Ali v Deportation Review Tribunal [1997] NZAR 208 (HC); and Wyeth (NZ) Ltd v Ancare New Zealand Ltd [2010] NZSC 46, [2010] 3 NZLR 569.

^[22] Discussed above at [41].

^[23] Roslea Path, above n 4, at [175].

^[24] At [141].

^[25] At [143].

^[26] At [118].

^[27] At [146].

^[28] At [144].

^[29] At [159].

^[30] See above at [16]–[18].

^[31] Salus Safety Equipment, above n 2, at [19].

^[32] Green Securities, above n 1, at [30].

^[33] Roslea Path, above n 4, at [215].

^[34] JA Simpson and ESC Weiner (eds) The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford, 1989) vol XI at 50.

^[35] At 51.

^[36] Bryan A Garner (ed) Black’s Law Dictionary (11th ed, Thomson Reuters, St Paul (Minnesota), 2019) at 1335.

^[37] Salus Safety Equipment, above n 2, at [20].

^[38] At [18].

^[39] Green Securities, above n 1, at [27], n 8.

^[40] At [27].

^[41] Roslea Path, above n 4.

^[42] Salus Safety Equipment, above n 2, at [18(g)]; and Green Securities, above n 1, at [17(e)].

^[43] Salus Safety Equipment, above n 2, at [18(f)]; and Green Securities, above n 1, at [17(d)].

^[44] Salus Safety Equipment, above n 2, at [18].

^[45] At [19].

^[46] See [48] above.

^[47] Salus Safety Equipment, above n 2, at [19].

^[48] Green Securities, above n 1, at [25]–[26].

^[49] At [20]–[22].

^[50] Re Medforce Healthcare Services, above n 8, at [19].

^[51] Roslea Path, above n 4, at [157].

^[52] See above at [66], [70], [72] and [73].

^[53] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

^[54] At [16].

^[55] O’Regan v Lousich, above n 19.