以物抵债，指债权人与债务人之间存在金钱债务，双方约定将债务人财产作价交付债权人抵偿债务的行为。实践中，主要分为两种类型，包括当事人双方协商的以物抵债和民事强制执行程序中的以物抵债程序，本文仅就前种以物抵债类型进行探讨。

近年来，随着新冠疫情影响，经济形势发生变化，再加上政策调控等多重因素打击，导致地产行业遭遇寒冬，现金流频繁遭受考验。迫于资金回款压力，为了缓解僵局，地产企业推出“工抵房”“内部房”等房源以期减轻对外负债或实现现金回流。其中，“工抵房”也被称为工程抵款房，是开发商用于给工程方抵扣工程款的一种方式，也是大众所俗称以物抵债的一种常见形式。虽然，工程方的需求是现金而并非房屋，但目前经济形势下，工程方面临开发商无款支付的现实局面，只能无奈被迫接受“工抵房”。尽管“工抵房”的出现使得开发商不再面临房子无路销售的难题，同时解决了部分应付款项；工程方能获得部分“工抵房”以解决工程资金被长期拖欠的难题；购房者可以更低价格买到“工抵房”从而降低购房成本，这一循环链看似多赢，实则隐藏大量法律风险。本文将从“工抵房”的角度，以工抵债权人的视角，对以物抵债的性质、模式、法律风险等维度进行分析，以期对实践和后续研究有所贡献。

一、以物抵债协议的性质

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.

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.

In the two judgments, Commissioner of Inland Revenue v Salus Safety Equipment Ltd (in liq) [2020] NZHC 1368 and Commissioner Inland Revenue v Green Securities Ltd (in liq) [2020] NZHC 1371, Associate Judge Bell significantly reduced the amount recoverable in each proceeding by liquidators. 

Both cases considered applications from liquidators to seek approval of their remuneration.  In Salus the amount claimed was $91,600 and in Green Securities it was $159,044.

Former liquidator Geoffrey Smith has been convicted on six charges, including stealing $130,000 from two companies to which he had been appointed liquidator. Mr Smith was also convicted of perjury in connection with the same liquidations.

The High Court judgment in Commissioner of Inland Revenue v Livingspace Properties Ltd (in rec and in liq) [2020] NZHC 1434 is another chapter in the continuing, bitter saga between Robert Walker, the liquidator of Livingspace and David Henderson (through his wife as proxy).

New Zealand's insolvency practitioner licensing regime came into force on 1 September 2020.  Ahead of that date, controversial insolvency practitioner, Damien Grant, applied to join RITANZ, which was a requirement for him to be licensed to continue as an insolvency practitioner, because he was not a chartered accountant.  RITANZ considered his application in June 2020 and refused it on good character grounds.  RITANZ's decision has not been publicly released, but is understood to be founded on Grant's historical dishonesty convictions.