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.

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.

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

The recent decision of the UK Supreme Court in BTI 2014 LLC v Sequana SAV & Ors [2022] UKSC 25 has considered the nature of the so-called “creditor duty” and whether directors are required to take into account the interests of creditors when the company is “insolvent, bordering on insolvency, or that an insolvent liquidation or administration is probable.”

The Sequana decision also provides guidance about when the so-called “creditor duty” is engaged.

Background

The recent decision of the High Court in Fistonich & Anor v Gibson & Ors [2022] NZHC 1422 considered whether receivers have a right to retain surplus funds to meet the cost of defending actual or forecast claims against the receivers.

Background

The case involves the sale of the business and land associated with Villa Maria winery, which was owned and operated through Villa Maria Estate Ltd and established 60 years ago by Sir George Fistonich. FFWL Ltd was the holding company of Villa Maria Estate Ltd.

The importance of subcontractors scrutinising how retention funds are held, and how they are dealt with by insolvency practitioners, was highlighted in the recent High Court decision in McVeigh v Decmil Australia Pty Limited & Anor [2021] NZHC 2929 (Decmil). The liquidator sought an order from the Court to be appointed as receiver of the retentions fund.

Liquidators have wide-ranging powers under the Companies Act 1993 (Companies Act), including the power to request directors, shareholders or any other relevant person to assist in the liquidation of a company.

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: