In Fenland District Council v Sheppard and others, FDC had spent £72,000 making a derelict property safe, which by the hearing date was worth less than half that amount. FDC registered the property improvements as an interest in the property, (indisputably) in priority to the prior mortgagee.

When the property's owner was adjudicated bankrupt, the bankrupt's trustee disclaimed the property (under a provision similar to section 117 of the NZ Insolvency Act). FDC sought to have the property vested in it, on the condition that the mortgagee's charge be removed.

In our October update, we reported on the Court of Appeal decision in Grant v Commissioner of Inland Revenue (see here).  The Supreme Court has now declined leave to appeal from that decision.

Recent decisions from the courts have raised the legal risk for directors and underlined the exposure to third party liability of auditors, trustees and promoters. 

As a result, we can probably expect this year to have more claims made by receivers, liquidators and out-of-pocket investors against those involved in:

The Insolvency Practitioners Bill is now unlikely to come into force until early 2013 due to the disruption caused by the election.  The Finance and Expenditure Select Committee’s report on the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill will also be delayed until next year.

Insolvency Practitioners Bill

A recent Court of Appeal decision (Clark v Libra Developments Ltd [2011] NZCA 493), provides a useful guide to the general principles which apply to partners who do not have a formal agreement in place governing the dissolution of their partnership.

Just what is an account receivable has been the subject of much debate, because it determines what assets are used to satisfy preferential claims, i.e. who gets paid first in a receivership or liquidation.  In 2008, the High Court judgment in Commissioner of Inland Revenue v Northshore Taverns (in liq) confined “accounts receivable” to “book debts”.  Although since criticised, that judgment was the only judicial authority on the point.

The Court of Appeal has affirmed the High Court’s ruling that a voluntary administrator may only use a casting vote where the number of creditors voting for and against the resolution is equal. 

The second limb of the test, that the 50% represent at least 75% in value, cannot be the subject of the casting vote.  Nor can the casting vote be used to choose between the number and the value.

In the High Court decision of Herbert v Allied Nationwide Finance Limited & Others, the Court declined to approve a creditor's proposal under the Insolvency Act 2006 on the grounds that the terms were not reasonable and not calculated to benefit the general body of creditors.

InThe Commissioner of Inland Revenue v Blackmore Trust Ltd, Blackmore tried to stave off liquidation for the sum of $1.4 million owed to the IRD.  After six or seven adjournments, Blackmore finally put evidence before the Court (albeit through its lawyer, rather than by affidavit) claiming that its liabilities totalled $15.6 million, and its sole asset, the James Smith building in the Wellington CBD, was valued at $21.5 million as a going concern, or $11 million - $13 million in a "fire sale".

In our October 2010 insolvency legal update, we reviewed the case of South Canterbury Finance Ltd v Nielsen, where the Court found in favour of second mortgagee, SCF, on the interpretation of a deed of priority.  That case was appealed successfully to the Court of Appeal by the first mortgagee, ASB.  This update provides a brief review of the Court of Appeal's reasoning.