This case involved a claim under section 294 of the Companies Act 1993 by the liquidators of Five Star Finance Limited (in liquidation) (FSF) against a trustee of a trading trust (Bowden No. 14 Trust (Trust)) to set aside payments amounting to $928,937.79.  These payments were part of a large number of payments, not just from FSF to the Trust, but also from the Trust to FSF.

This appeal to the Supreme Court of the United Kingdom arose out of the insolvency and administration of the Lehman Brothers Group of companies.  Lehman Brothers International (Europe) (LBIE) was the principal European trading company in the group, and was authorised and regulated by the Financial Services Authority (FSA) prior to being put into administration in 2008.  This appeal (one of many involving the group) related to the provisions of the Clients' Assets Sourcebook issued by the FSA (CASS) that govern the basis on which client money is required to be held by regulated ent

Recently a number of businesses that were acquired in the relatively heady pre-GFC days have needed to take action to restructure their equity and debt. Often the businesses have been carrying a significant debt burden from the acquisition. Compounding this, the value of the business may have been eroded to a level that is less than the value of the debt, possibly because of operating results having deteriorated and/or the valuation multiples attributed to the business having shortened.

A recent High Court decision by Justice Heath on the new section 30(2B) of the Receiverships Act 1993 (the Act) provides guidance as to how receivers should account for their remuneration and expenses when dealing with accounts receivable and inventory.

The key points are as follows:  

Until recently, the PPSA did not give second and subsequent ranking secured creditors a statutory right to take possession of collateral in the event of default. The PPSA has recently been changed to allow all secured creditors to exercise this right. The recent case of Glenmorgan v New Zealand Bloodstock [2011] NZCA 672, however, confirms that all secured creditors can also rely on contractual rights to take possession of collateral. Secured creditors should ensure that their security documents clearly give them this right.

In a decision released in September 2011, the High Court ruled that a mortgagee cannot exercise its power of sale under the mortgage if the Family Court has subsequently made an interim occupation order under the Property (Relationships) Act. That ruling had significant consequences for mortgagees, and was appealed to the Court of Appeal.

The High Court has confirmed its broad power to bypass the strict legislative requirements that otherwise govern voluntary administrations.  Section 239ADO(1) of the Companies Act allows the Court to make any order that it thinks appropriate about how the voluntary administration provisions of the Companies Act are to operate in relation to a particular company.

“...we consider that the section means what it says, and that there is not much point in trying to paraphrase it.” (Supreme Court in Thompson v CIR)

This guide introduces you to New Zealand's business and trading environment, with particular focus on legal and regulatory matters.

The Law Commission is looking into whether the regulation of trading trusts gives enough protection to creditors and beneficiaries in circumstances of insolvency. 

Submissions are due on the issues paper by 2 March 2012.

What is a trading trust?