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Court ruling on claw-backs by liquidators welcomed

February 20, 2015 by SPCS Leave a Comment

‘Common sense’ decision may prevent liquidators from re-claiming payments.

A Supreme Court ruling that clears up a contentious area of insolvency law could put a hand brake on liquidators trying to claw back funds from creditors paid out before a company collapses.

One liquidator who was not involved in the case, Damien Grant, said yesterday’s decision meant there would be less distributions from liquidations in the future.

A lawyer who was on the losing side of the litigation, Kevin Bond, said directors of insolvent companies may now be encouraged to make preferential payments to creditors who have leverage over them.

On the other hand, representatives of the construction industry hailed the Supreme Court’s judgment as a “victory for common sense” that would come as a relief to “thousands of businesses”.

The unanimous decision from Justices Sian Elias, John McGrath, William Young, Susan Glazebrook and Terence Arnold concerned voidable transactions, where liquidators claw back money from individuals or companies who were paid up to two years prior to their appointment.

It follows a Court of Appeal decision from 2013 that caused many people concern, particularly in the construction industry.

That ruling, according to those in the sector, meant that unless a contractor or subcontractor was paid upfront for work done for a company later found to be insolvent, the funds could be recovered by a liquidator. [Read more…]

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Filed Under: Enforcement Tagged With: insolvency, insolvent company, liquidators, viodable transactions

Appeal Court backs liquidators’ power to claw back payments made by an insolvent company

March 31, 2013 by SPCS Leave a Comment

The Court of Appeal has backed liquidators’ power to claw back payments made by an insolvent company up to two years before its collapse.

Three High Court decisions last year undid a commonly held belief about voidable transactions, where a liquidator can order a creditor to repay money received from a troubled firm.

The voidable transaction process is designed to prevent creditor queue jumping. A creditor can defend against a claim if it can prove it acted in good faith in accepting the payment, had no reason to suspect the business it was trading with was in trouble and gave value for the funds received.

The High Court ruled a creditor should not be disadvantaged just because it provided its services before being paid, as many suppliers did.

The High Court decisions meant voidable transactions would be virtually unenforceable and so appeals were lodged.

Source: Fairfax NZ

Maria Slade. Business Day 30 March 2013. www.stuff.co.nz

For further details see:

Interim Judgment of the Court of Appeal dated 27 March 2013.

Farrell and Rogan as Liquidators of Contact Engineering Ltd v. Fences & Kerbs Limited

CA 773/2012 [2013] NZCA 91

Given  by P. Randerson J.

Hearing date 7 February 2013

O’Regan, P. Randerson, and French JJ

http://www.courtsofnz.govt.nz/front-page/cases/farrell-and-rogan-as-liquidators-of-contact-engineering-limited-v-fences-kerbs-limited

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Filed Under: Enforcement Tagged With: Contact Engineering Ltd, Court of Appeal, Farrell and Rogan, Farrell and Rogan Liquidators, Fences & Kerbs Limited, insolvent company, liquidator's power, voidable transaction

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