Industrial and Commercial Bank of China (New Zealand) Limited v Bank of China (New Zealand) Limited [2019] NZHC 110 (8 February 2019)

High Court of New Zealand

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Industrial and Commercial Bank of China (New Zealand) Limited v Bank of China (New Zealand) Limited [2019] NZHC 110 (8 February 2019)

Last Updated: 26 February 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000131 [2019] NZHC 110

UNDER	Part 15A of the Companies Act 1993
IN THE MATTER OF	CBL CORPORATION LIMITED (ADMINISTRATORS APPOINTED)
BETWEEN	INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED First Applicant
	BANK OF CHINA (NEW ZEALAND) LIMITED Second Applicant

Hearing:	(On the papers)
Judgment:	8 February 2019

JUDGMENT OF COURTNEY J

[reasons for order adjourning watershed meeting]

This judgment was delivered by me on 8 February 2019 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Russell McVeagh, Auckland

Mayne Wetherell, Auckland

Counsel: S Mills QC/R J Hollyman QC, Auckland

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NZ) LTD v BANK OF CHINA (NZ) LTD [2019]

NZHC 110 [8 February 2019]

[1] CBL Corporation Limited (Administrators Appointed) (CBLC) is in voluntary administration. The watershed meeting, originally scheduled for 18 May 2018, has been adjourned several times. Two creditors of CBLC, Industrial and Commercial Bank of China (New Zealand) Limited (ICBC) and Bank of China (New Zealand) Limited (BOC) applied without notice for orders under s 239ADO of the Companies Act 1993 adjourning the watershed meeting of creditors to a date no later than 10 working days after the date of a decision in respect of the extant application to liquidate CBLC, and other associated orders. This morning I made the orders on the basis that these reasons would follow.

[2] ICBC and BOC are the applicants in the liquidation application. The liquidation application has been adjourned to a date after 30 April 2019 which, although not yet been allocated, is to be a final hearing date. The application for orders adjourning the watershed meeting date was brought to accommodate the efforts underway to finalise a restructuring proposal by a shareholder and directors of CBLC whilst also protecting the position of the creditors.

[3] Previous applications to adjourn the watershed meeting were made on the application of the Administrators and mostly allowed because of the unresolved status of CBLC’s subsidiary, CBL Insurance Limited (CBLI), which was placed in liquidation in December 2018. An adjournment of the watershed meeting date granted in December 2018 extended the adjournment period to 15 February 2019.

[4] If the anticipated proposal has the support of creditors the orders that I have made today will give the Administrators the power to bring the watershed meeting forward so that the proposal can be adopted. If there is no proposal accepted by the creditors, however, the best outcome for creditors will be for the liquidation of CBLC to occur in the context of the application to liquidate rather than at a watershed meeting. If liquidation occurred in the context of the watershed meeting the restricted period for voidable transactions would be from 15 August 2018; in comparison, if liquidators were appointed by the Court, the restricted period would start in November 2017.
[5] The application was supported by affidavits from officers of each of ICBC and BOC, explaining the basis for the application and their views that the orders sought would lead to the best result for all concerned, including allowing the Administrators flexibility in managing the watershed meeting.

[6] The Administrators have, by counsels’ memorandum, confirmed their support of the application. The ANZ Bank, another creditor, has been served and does not wish to take steps.

[7] Although I had previously expressed concerns about the number of adjournments I accepted that the adjournment of the watershed meeting in order to dovetail in with the current date for the liquidation application was appropriate.










P Courtney J