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    Backward tracing the misuse of company funds
    2016-12-13

    In Intext Coatings Ltd (In Liquidation) v Deo, the High Court was again asked to consider the limits of the equitable remedy of tracing (previously considered here). In particular, the Court was asked to consider the circumstances in which 'backward tracing' (the tracing of trust funds used to repay a debt into the asset over which that debt arose) is available.

    Filed under:
    New Zealand, Banking, Insolvency & Restructuring, Litigation, Real Estate, Buddle Findlay, Debt, Mortgage loan
    Authors:
    Susan Rowe , Scott Abel , Kelly Paterson , Peter Niven , Jan Etwell , Scott Barker , David Perry , Bridie McKinnon , Willie Palmer , Myles O'Brien
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    The dangers of playing fast and loose when trading carbon credits, rare earth metals and coloured diamonds
    2016-12-13

    The English High Court in Re Caledonian Ltd considered whether the business practices of two companies justified the winding up of these companies on a just and equitable basis.

    Caledonian Ltd and Caledonian Commodities Ltd (Companies) in concert marketed and sold (among other products) carbon credits, rare earth metals and coloured diamonds (Products) to individual investors.

    Filed under:
    New Zealand, United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay, Liquidation, Carbon credit, High Court of Justice (England & Wales)
    Authors:
    Scott Abel , David Perry , Scott Barker , Bridie McKinnon , Myles O'Brien , Kelly Paterson , Susan Rowe , Peter Niven , Jan Etwell , Willie Palmer
    Location:
    New Zealand, United Kingdom
    Firm:
    Buddle Findlay
    Shadow director and shady dealings brought to light
    2016-09-29

    In Petterson v Hutt a liquidator sought an interim injunction preventing any enforcement steps being taken under two general security agreements (GSAs).  In the substantive proceeding, the liquidator sought to have the GSAs set aside.

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay
    Authors:
    David Perry , Jan Etwell , Scott Abel , Scott Barker
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Liquidity not co-extensive with solvency
    2016-09-29

    In Madsen-Ries & Anor v Donovan Drainage and Earthmoving Limited [2016] NZCA 301, the liquidators of a failed property development company, Te Pua, applied to set aside as insolvent transactions a number of payments which Te Pua made to a drainage contractor, Donovan. 

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay
    Authors:
    David Perry , Jan Etwell , Scott Abel , Scott Barker
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Former directors found to be in breach of their duties
    2016-09-29

    In CGES Limited (in liquidation and receivership) v Kelly [2016] NZHC 1465, the liquidator of CGES Limited brought claims against the former directors of the company for breaches of duties owed to the company.  The High Court held:

    Filed under:
    New Zealand, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay
    Authors:
    David Perry , Jan Etwell , Scott Abel , Scott Barker
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    UKSC on revocation of agent's authority and constructive trusts in insolvency
    2016-09-29

    In Bailey v Angove's Pty Limited [2016] UKSC 47, the UK Supreme Court affirmed two principles of critical significance to insolvency practitioners.  The first is that even if the parties should agree that an agent's authority is irrevocable, it will not be treated as such unless such non-revocation is intended to secure the financial interest of the agent.  The second is that when money is paid to an agent for a consideration that the agent knows at the time of receipt must fail because of the agent's imminent insolvency, such receipt will not give rise to a rem

    Filed under:
    New Zealand, United Kingdom, Insolvency & Restructuring, Litigation, Buddle Findlay, UK Supreme Court
    Authors:
    David Perry , Jan Etwell , Scott Abel , Scott Barker
    Location:
    New Zealand, United Kingdom
    Firm:
    Buddle Findlay
    Litigation funding arrangement not an abuse of process
    2016-12-01

    In Day v The Official Assignee as Liquidator of GN Networks Ltd (in Liq) [2016] NZHC 2400, the High Court rejected a claim that the funding arrangement at issue constituted maintenance or champerty.

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay
    Authors:
    Olly Peers , Bridie McKinnon , Oliver Gascoigne , Susan Rowe , Peter Niven , Kelly Paterson , Scott Barker , Willie Palmer , David Broadmore , Sherridan Cook
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    High Court stays liquidation proceedings permanently
    2016-12-13

    Jellie v Tannenberg Limited concerned an application by the defendant, Tannenberg, to stay liquidation proceedings against it. Tannenberg claimed not to have been served with a copy of the statutory demand or liquidation proceedings. Instead, Tannenberg alleged that it first heard of the liquidation proceedings when they were advertised in the New Zealand Herald. In addition to the issue in respect of service, Tannenberg disputed the underlying debt on which the statutory demand was based.

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay, Debt, Liquidation
    Authors:
    Susan Rowe , Peter Niven , Bridie McKinnon , Scott Abel , Scott Barker , Kelly Paterson , David Perry , Jan Etwell , Myles O'Brien , Willie Palmer
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Loans to wife for husband's purposes not subject to the CCCFA
    2016-12-13

    Mr Maharaj owned a building company. Ms Nandani, his wife, owns a residential property. Mr Maharaj needed funding, which he could not obtain. However, the necessary funds were loaned to Ms Nandani and secured over her property. Ms Nandani subsequently contended that:

    Filed under:
    New Zealand, Banking, Insolvency & Restructuring, Litigation, Real Estate, Buddle Findlay, Debt, Unconscionability, Undue influence
    Authors:
    Bridie McKinnon , Susan Rowe , David Perry , Jan Etwell , Scott Abel , Peter Niven , Scott Barker , Kelly Paterson , Myles O'Brien , Willie Palmer
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Director's security set aside
    2016-06-30

    In Petterson v Browne [2016] NZCA 189 a liquidator successfully appealed to the Court of Appeal and obtained orders under sections 295 and 299 of the Companies Act 1993 (Act) for certain payments and security to be set aside. 

    Filed under:
    New Zealand, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay
    Authors:
    David Perry , Jan Etwell , Scott Abel , Scott Barker
    Location:
    New Zealand
    Firm:
    Buddle Findlay

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