Contents Section Page New Zealand in a Nut Shell 1 Business Landscape 2 Overseas Investment Regime 6 Immigration 10 Structuring the Business 13 Capital Markets and Takeovers 17 Tax 21 Trade Practices 28 International Trade 32 Intellectual Property 34 Employee Relations 36 Real Property and Resource Management 40 Taking Security over Personal Property 42 Corporate Insolvency Law 44 Climate Change and Emissions Trading 47

New Zealand in a Nutshell

Voidable Transactions

Can be a significant risk for businesses

When an insolvent company goes into liquidation it’s accepted that not all creditors will get paid 100 cents in the dollar.However it often comes as a shock to creditors when the liquidator requires them to refund payments that had been made up to two years before the company was liquidated.

The High Court recently granted an application for an exemption from the requirement to send the liquidator's six monthly report to every preference shareholder of the company in liquidation. In FCS Loans Ltd (in liq) v Fisk & Anor, the High Court granted the liquidators' application for an exemption on the basis that the cost of supplying six monthly reports to the 3,141 preference shareholders (estimated to be $4,719.16) is not proportionate to any likely benefit to those shareholders from having the reports mailed to them.

Syntax Holdings (Auckland) Ltd (in liquidation) v Bishop involved a claim by the liquidators of Syntax Holdings (Auckland) Ltd that Mr and Mrs Bishop (as directors) had breached certain duties to the company (and its creditors) under the Companies Act 1993.

Section 296(3) of the Companies Act 1993 (the Act) provides a defence to creditors who have received a payment found to be a voidable transaction under section 292 of the Act. One of the elements that creditors need to establish under this defence is that they either provided value to the company or changed their position in reliance on the validity of the payment.

A recent decision of the Court of Appeal (Farrell v Fences & Kerbs Limited [2013] NZCA 91) will make it very difficult for creditors to successfully raise the good faith defence under section 296(3) of the Companies Act 1993 to a voidable claim by a liquidator.

New Zealand is a highly entrepreneurial society.  Even during the sluggish economic growth of the past three years, we have maintained an average company registration rate in excess of 45,000 a year. 

The lessons to be drawn from the Crafar receivership in relation to the Personal Properties Securities Act (PPSA) have now been distilled by the Court of Appeal, which has largely confirmed the High Court’s reasoning.

We discuss the implications of the litigation.

When insolvency practitioners consider who may be held accountable for corporate failures, auditors are often near the top of the list. It is easy to see why. From a practical perspective, auditors are relatively likely to be able to meet good claims, and from a legal perspective it is easy to identify the duties that the auditors owed and, in an unfortunate number of cases, breached.

In Aditude Advertising Limited (in liq.) v Techday Limited [2012] NZHC 1884, Aditude Advertising Limited (in liquidation) (Aditude) and Techday Limited (Techday), were members of the Bartercard system, a credit trading system.  Under this system members could exchange goods and services without exchanging cash or other legal tender.  Aditude went into liquidation with a significant credit in its Bartercard account for services rendered to Techday.  The liquidators issued a statutory demand against Techday seeking to recover the actual cash value of the invoices issue