In Stojkov v Kamal [2015] NZHC 2513 a creditor, Mr Stokjov, gave notice to the appointed liquidator, Mr Kamal, for a meeting of creditors to be called.  Mr Kamal did not call the meeting and maintained that the notice was given out of time.  Mr Stokjov reasonably pointed out that this was plainly incorrect.  Mr Kamal, despite clearly being in breach of his duty, still refused to call the meeting and later claimed (quite irrelevantly) that the cost of the meeting was not justified.

A recent decision of the High Court suggests that a creditor who has not objected to a notice given under section 292 of the Companies Act may be able to defend the claim at a later stage.

In a recent High Court decision, a bank (B) applied to appoint liquidators to the TPS Asset Trust and TPS Asset No2 Trust (Trusts). The defendants had guaranteed loans borrowed from B by their company, both personally and in their capacity as trustees of the Trusts.

The defendants had been found guilty of fraud, tax evasion and attempting to pervert the course of justice in August 2012. In July 2012 the defendants had also been adjudicated bankrupt and their company had been placed in liquidation.

In Re Hurlstone Earthmoving Limited (in receivership and liquidation): Petterson v Gothard (No 3) [2012] NZHC 666, the liquidator of Hurlstone Earthmoving Limited sought orders under section 37 of the Receiverships Act 1993 compelling the receivers to provide company documents and information about the company's affairs after they had failed to comply with a notice under section 261 of the Companies Act 1993.

In Stockco Ltd v Denize the applicants sought an order to set aside bankruptcy notices on the ground that the creditor had not complied with High Court Rule 24.8(3).  That Rule requires that a certified copy of the judgment or order on which the bankruptcy notice is based must be attached to the bankruptcy notice.  The applicants claimed that the notice was defective as it was served separately from copies of the judgment.

The recent case of Re Armitage, ex parte Established Investments Limited (in liquidation) considered an objection by the Official Assignee to Mr Armitage's automatic discharge from bankruptcy. 

Bank B sought adjudication in bankruptcy of F.

In our April 2019 newsletter we reported on the High Court judgment in Mainzeal Property Construction Limited (in liq) & Ors v Yan & Ors [2019] NZHC 255.  The directors were ordered to contribute $36m to Mainzeal’s assets to be distributed to creditors.  The Court found that Mr Yan was the most culpable director and had induced the other directors to breach their duties.

In our December 2019 newsletter we commented that the Madoff bankruptcy had one more big case to go, chasing USD3.2b held by foreign banks.  The US Supreme Court has just refused to hear an application by major banks and companies, including Koch Industries Inc, to prevent Mr Picard, the bankruptcy trustee, from pursuing claims aimed at recouping funds that were transferred overseas.  In the meantime, Mr Madoff has been refused early

In Robt. Jones Holdings Limited v McCullagh [2019] NZSC 86, the Supreme Court unanimously held that it is unnecessary for a liquidator to prove that any payment actually diminished the assets of a company to claw back that payment under s 292 of the Companies Act (Act).