In a judgment issued yesterday (Francis v Gross [2024] NZCA 528), the Court of Appeal unanimously overturned the controversial High Court decision in Francis v Gross [2023] NZHC 1107 and held that purchasers of partly constructed modular buildings (pods) did not have equitable liens (at all, and especially not in priority to secured creditors) over those pods.

自改革开放以来，我国经济经历了四十余年的高速增长，目前已由高速增长阶段转向高质量发展阶段。在高速增长阶段积累的债务风险近年来不断显现，金融机构的不良资产不断增加。现阶段为深化供给侧结构性改革，推动经济高质量发展，对我国经济社会发展过程中存在债务风险的重点领域实施系统性、高质量的债务重组是重要的着力点之一。

自上世纪九十年代以来，金杜开始参与我国一些大型企业集团的债务重组工作；2007年《企业破产法》实施后，金杜更是一直活跃在债务重组市场的一线，既承办和参与了包括海航集团、紫光集团、渤海钢铁、永泰能源、盐湖股份、雨润集团、包商银行、新华信托等在内的一大批大型企业债务重组案件，也承办了大量的“三无”、中小型的企业破产清算案件。金杜债务重组部三十多年来一直专注债务重组领域，积累了丰富的债务重组实践经验。为对我国的债务重组实践提供有益借鉴，同时也为金杜能够更好地服务于债务重组市场，结合过往承办的债务重组具体案例，我们对债务重组市场进行2023年度回顾和观察分析，以期对相关法治建设、营商环境改善以及提高债务重组质量建言献策。

目录

一、2023年我国宏观债务形势整体观察

（一）2023年度宏观经济形势

（二）我国目前存在债务问题的重点领域

This morning, after much anticipation, the Supreme Court has released its judgment in Yan v Mainzeal Property Construction Limited (in liq) [2023] NZSC 113, largely upholding the Court of Appeal's decision, and awarding damages of $39.8m against the directors collectively, with specified limits for certain directors. The decision signals that a strong emphasis on 'creditor protection' is now embedded in New Zealand company law.

In recent years much ink has been spilled opining on the so called 'Quincecare' duty of care, and the limits of it (see links to our recent insolvency law updates covering the topic below). The judgment in Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 was a first instance decision on Steyn J, in which he found that a bank has a duty not to execute a payment instruction given by an agent of its customer without making inquiries if the bank has reasonable grounds for believing that the agent is attempting to defraud the customer.

AML changes for court-appointed liquidators

Important changes for court-appointed liquidators to the regulations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (Act) will come into force on 9 July 2021.  These changes provide that, for a court-appointed liquidator:

The High Court has released its judgment in Re Halifax NZ Limited (In liq) [2021] NZHC 113, involving a unique contemporaneous sitting of the High Court of New Zealand and Federal Court of Australia.

This update deals with the significant appeal judgment released yesterday by the Court of Appeal in the proceedings brought by the liquidators of Mainzeal Property and Construction Ltd (in Liq) (Mainzeal) against its directors. Our previous legal updates on the High Court decisions can be found here and here.

The real lesson from Debut Homes – don't stiff the tax (wo)man

The Supreme Court has overturned the 2019 Court of Appeal decision Cooper v Debut Homes Limited (in liquidation) [2019] NZCA 39 and restored the orders made by the earlier High Court decision, reminding directors that the broad duties under the Companies Act require consideration of the interests of all creditors, and not just a select group. This is the first time New Zealand’s highest court has considered sections 131, 135 and 136 of the Companies Act, making this a significant decision.

Five years after it refused to pay rent and took the landlord to the High Court, and two years after it was placed into liquidation on account of unpaid rent, the final branch of litigation brought by the directors of Oceanic Palms Limited (in liq) has been cut down by the Supreme Court.

The UK Supreme Court in Bresco Electrical Services Ltd (in liq) v Michael J Lonsdale (Electrical Ltd) [2020] UKSC 25 has decided that the adjudication regime for building disputes is not incompatible with the insolvency process.