The decision of Graham & Jackson v Arena Capital Limited (In Liquidation) concerned an application under the Companies Act 1993 by liquidators seeking direction on the application of liquidation funds.
Christchurch based Arena Capital Limited, which traded as BlackfortFX, was operating what the High Court described as a "simple ponzi scheme". Arena was subsequently placed into liquidation in August 2015, and an asset preservation order (APO) was imposed over Arena's bank accounts. Several deposits were made by investor clients into Arena's accounts following the imposition of the APO. The liquidators of Arena sought direction from the High Court as to whether the post-APO depositors had any different rights, namely, any form of priority, in the liquidation proceeds over pre-APO investors.
In the circumstances, the High Court was unwilling to accept the argument that monies paid post-APO were subject to a constructive remedial trust (or a resulting trust, noted obiter) in favour of the post-APO investors. However, Justice Mander ruled that the imposition of an APO was a "material and influential factor", which altered the position of the post-APO investors and the status of their deposits. The APO allowed the funds to remain "unmixed" in their original form, and therefore capable of being directly traced back to the post-APO depositors. On this basis, the High Court concluded that the post-APO depositors' funds were the subject of a statutory trust and should be paid out in priority to any other distributions.
See Court decision here.