HELILOGGING HOLDINGS LIMITED (IN RECEIVERSHIP) AND ORS V MARK WAYNE FORD AND ANOR HC NWP CIV 2007-443-578 [2007] NZHC 1111 (19 October 2007)

IN THE HIGH COURT OF NEW ZEALAND
NEW PLYMOUTH REGISTRY
                                                                   CIV 2007-443-578



              BETWEEN                    HELILOGGING HOLDINGS LIMITED
                                         (IN RECEIVERSHIP)
                                         First Plaintiff

              AND                        HELILOGGING LIMITED (IN
     
                                   RECEIVERSHIP AND IN
                                         LIQUIDATION)
                   
                     Second Plaintiff

              AND                        JOHN TREVOR WHITTFIELD AND
                     
                   PERI MICAELA FINNIGAN
                                         Third Plaintiffs

              AND           
            COMMERCIAL FACTORS LIMITED
                                         Fourth Plaintiff

              AND             
          MARK WAYNE FORD
                                         First Defendant

              AND                        MARK
WAYNE FORD, SUZANNE
                                         RUTH FORD AND PAUL CONRAD
                                         ELLIS
                                         Second Defendants


Hearing:      18-19 October 2007

Counsel:      MD Arthur for Plaintiffs
(ES Scorgie in attendance)
              GH Takarangi (Pickwick appearance) attendance by telephone in
              terms of his
letter of 18 October 2007 to the Registry
              Mr and Mrs Ford in attendance by telephone

Judgment:     19 October 2007


                     JUDGMENT OF BARAGWANATH J


Solicitors:   Chapman Tripp, P O Box 2206, Auckland for Plaintiffs
          
   ([e-mail])
              Graham H Takarangi & Co, P O Box 72, Wanganui for Defendants
              ([e-mail])

HELILOGGING HOLDINGS LIMITED (IN RECEIVERSHIP) AND ORS V MARK WAYNE FORD AND
ANOR HC NWP CIV 2007-443-578 19 October 2007

[1]
   This is a Pickwick application by company receivers which, at telephone
conference on 18 October, I declined to deal with simply
ex parte. Mr Takarangi is
accustomed to act for the defendants and was supplied yesterday at 11.18 a.m. with a
copy of the proceedings.
Mr Mark Wayne Ford, the first defendant, and his wife,
Suzanne Ruth Ford, a second defendant, were served at 1.00 p.m. yesterday.
The
remaining second defendant, Paul Conrad Ellis, has not been served. Mr Takarangi
advises that it is not necessary, in order for
the urgent issue to be resolved, for
Mr Ellis to be served.


[2]    While the substantive claim relates to other assets, it is common
ground that
the issue of urgency that warrants a hearing commencing at 5.00 p.m. last night
relates only to five Wessex helicopters
and related parts at present in the possession
of Mr Ford. Mr Ford will continue to retain a further two Wessex helicopters. There
are, in addition, in the United Kingdom a further three Wessex helicopters and
related parts. The crucial part of the dispute relates
to parts for five helicopters first
mentioned including the remains of a further crashed Wessex helicopter, registration
GHANA G-AYNC.
Such parts are held both by Mr Ford in New Zealand and by the
receivers in England.


[3]    The urgency derives from the fact that
the plaintiffs have sold the five
helicopters at present in the possession of Mr Ford, plus parts, together with the three
situated
in England and there is risk of loss of the sale for a price of $US150,000 if
there is delay in the plaintiffs' being able to pass
possession.


[4]    Mr Takarangi advises that there is no dispute in relation to the helicopters as
distinct from the parts and
there will be an order for delivery up to the plaintiffs of
the five helicopters, namely:

       1.2     ZKHBF                 
                      XT606

       1.4     CLUBS                                        XV730

       1.5     DIAMONDS         
                           XT680

       1.6     SPADES                                       XS675

       1.7     LIMA                                         XR611

There will be a like order in relation to the parts which the experts determine are not
referable to the two aircraft claimed by
Mr Ford. The order in relation to such parts,
to take effect following the experts' advice to the parties of their determination


[5]    The immediate problem is that the parts in Mr Ford's possession and in
England relate both to the five helicopters just
mentioned and the two to which
Mr Ford claims entitlement to retain but no process has been put in place to
discriminate between
those two categories. It is essential that the plaintiffs have the
parts required for their helicopters and that Mr Ford retain the
parts required for the
two helicopters he claims.


[6]    While it is highly undesirable that the plaintiffs lose their sale through
lack of
access to their parts, it is equally undesirable for Mr Ford to lose the parts required
for the two aircraft he claims. The
defendants are pursuing an application for
judicial review that may see their two aircraft back in business. Having adequate
spares
is critical to that capacity. So a process must be devised for allocating the
parts into their respective categories ­ plaintiffs'
and Mr Ford's.


[7]    There was a form of agreement dated 15 March 2007 which the plaintiffs say
is cancelled and the defendants
say is of full effect. I do not embark upon who is
likely to be right in that dispute. The relevance of the agreement is that it
has in it a
clause, which at one point the parties accepted, as to how a very similar issue
between the parties was to be resolved.


[8]    The part of paragraph 1 of that agreement starting at the second sentence and
concluding "Fords will receive one (1) set
of Wessex tools" will be adopted as the
dispute resolution process, save that there will be appointed a person or persons, to
be
agreed by the parties, who will, as an expert, determine for the purpose of this
interlocutory order the allocation of spares between
the plaintiffs and the defendants
having first taken care to ascertain the wishes of the respective parties. The parts
allocated
to each party will carry with them the respective "associated log card" for
each part.

[9]     The plaintiffs undertake, in relation
to the parts at present in England, to
move them into safe custody where they will be retained until further order of the
Court.
The undertaking is limited to the parts that are not referable to the eight
aircraft the subject of sale by the plaintiffs.


[10]
   A condition of this injunction is that the plaintiffs provide either a bank
guarantee sufficient to protect the interests of the
defendants or cash. On the premise
that the eight helicopters being sold are not dissimilar in quality from the two being
retained
by the defendants, the value of the guarantee should be of the order of two-
eighths, equal to 25% of $US150,000. Allowing moderate
costs, I fix the security at
$US40,000.


[11]    There will be liberty to apply for further directions by telephone conference
arranged
at short notice.


[12]    Costs are reserved.


[13]    There will be a telephone conference in which I will take part at 9.00 a.m.
on
Tuesday, 4 December 2007. There will be leave to apply to the Registrar to secure
an earlier telephone conference if either side
so wish.