在与向英国供货的国际公司合作的过程中，我们发现了一些常见问题。在上一篇文章中，我们研究了客户可能面临的破产程序类型。在“五行”系列第四篇文章中，我们围绕“火”元素来说明破产执业者在进入破产程序时拥有的重大权力：调查不当行为，并将资产收回统一偿还债权人。

火：破产执业者对债权人欺诈性交易的重大权力

破产执业者(不论是清算人或管理人)可以向法院申请撤销在公司进入破产程序前进行的特定交易。通过这种方式，可以收回资产或资金，统一向债权人偿付。下列情形属于“先前的”或“可审查”的交易：

1. 公司的资产或财产被低价出售；

2. 公司在进入破产程序前给予某债权人优先权，使其处于比其他债权人更有利的地位；

3. 公司订立了敲诈性信贷交易（交易条款有严重的敲诈性）；

4. 公司设立了无效浮动抵押，即为已发放的贷款或已提供的货物及服务的成本提供担保；

5. 公司订立的交易具有欺诈债权人的明确目的，即：使公司的资产脱离破产执业者和债权人的控制范围。

不同类型的可审查交易有不同的时间要求。例如，低价出售必须发生在公司进入破产程序前的两年内。

In our work with international companies supplying goods to the UK, we see the same issues arising regularly. In Part 3, we examined the types of insolvency process a customer may be subject to. In this fourth of five articles based on the five elements of the Wu Xing, we take the theme of Fire and explain the significant powers that arise for the insolvency practitioner on the entry into insolvency: to investigate propriety and recover assets to the central pool to pay creditors.

Non-party costs are exceptional and are only awarded when it is just to do so and when 'something more' about the non-party's conduct warrants costs.  The involvement of a parent company in litigation and avoiding a realistic settlement is an example of the 'something more' requirement being met.  In Minister of Education v H Construction North Island Ltd (in req and liq) [2019] NZHC 1459, the High Court found that McConnell Ltd's (McConnell) actions in this litigation warranted awarding non-party costs and disbursements of over a million dollars.

On various occasions during the periods 2012 to 2018, Shane Warner Builders Limited (SWBL) regularly failed to pay GST and PAYE to the Commissioner of Inland Revenue.

In January 2018 the Commissioner filed an application to put SWBL into liquidation.  The proceeding was adjourned in March 2018 whilst the Commissioner and Applicant engaged in negotiations for relief which ultimately failed due to SWBL's history of failures to pay tax arrears and failing to provide substantive supporting evidence regarding the source of funds required to settle current tax arrears. 

North Harbour Motors Limited (in liquidation) (North Harbour) issued a statutory demand against Moffat Road Limited (Moffat) in respect of two separate $30,000 deposits paid by North Harbour to Moffat on the purchase of two properties pursuant to agreements for sale and purchase dated 6 July 2015 (the Agreements).

In what is likely to be the final chapter in the Ross Asset Management (RAM) liquidation, assuming no appeal is filed, the High Court has considered an application for directions by the liquidators of Ross Asset Management concerning how best to distribute recovered funds.  David Ross operated RAM as a Ponzi scheme for decades until the fraud was uncovered in 2012 and the company went into liquidation.  Mr Ross is currently serving a ten year plus term of imprisonment for his role as architect of the scheme.

In Lafferty v Official Assignee Gordon J considered Mr Lafferty's appeal of two decisions of the Official Assignee to refuse Mr Lafferty's applications under section 62(1)(a) of the Insolvency Act 1967 to enter or carry on business while bankrupt.

Gordon J dismissed the appeal on the basis that Mr Lafferty could not show that the Official Assignee had made an error of law, failed to take into account relevant considerations or was manifestly wrong in exercising its discretion under regulation 34 of the Insolvency Regulations 1970.

An application by New Zealand Life Care Limited (Life Care) for an order reversing the decision of the Official Assignee to reject its claim for $4.9m in the bankruptcy of Mr Harman was dismissed by the High Court in New Zealand Life Care Ltd v Official Assignee [2018] NZHC 17.  Life Care said that Mr Harman had guaranteed loans from Life Care to his companies, but accepted that it did not have a written guarantee signed by Mr Harman.  Instead it relied on Mr Harman's admission of the guarantee in affidavits made after his adjudication.

The Hobson Apartments suffer from water tightness issues.  Unusually for a unit development, the top floor apartment on level 12 owned by the appellant Manchester Securities, owned the exterior of its unit including the roof of the building rather than the Body Corporate.  Severe water damage was identified in October 2009.  Following a series of High Court decisions and one Court of Appeal decision, Manchester Securities was required to contribute certain amounts to the Body Corporate for repair costs.

The Insolvency Practitioners Bill, which was first introduced to Parliament in 2010 by then Commerce Minister Simon Power, has been picked up by the new Commerce and Consumer Affairs Minister Kris Faafoi.  The Minister has released a Supplementary Order Paper, containing amendments to the Bill.  Included in those amendments is a system of registration of insolvency practitioners with an accredited body under a new, stand-alone Act.  This replaces the previous negative licensing regime originally proposed in the Bill whereby the Registrar of Companies was to be given the power