In the recent High Court case of McKay v Johnson & Smith [2016] NZHC 1691, a liquidator, Geoff Martin Smith, allegedly sent a notice under s 305 of the Companies Act 1993 to the bank that had security over a company in liquidation.  The bank did not respond to the notice and Mr Smith alleged that the bank had lost its security.  The bank maintained it never received the notice.

The Court was satisfied that the notice had been fabricated because:

  • Forensic examination of the relevant computer found that the notice had been created only recently
  • The document was addressed to an officer of the bank who had not had contact with Mr Smith until about four months after the date of the alleged notice
  • The stamp depicted in the photo (that had been supplied as proof of service) had not been published until 22 months after the alleged service took place
  • Mr Smith had a history of dishonesty, including convictions for tax evasion, theft, fraud and falsifying documents.

The Court ordered him to pay back the funds he had received over which the bank had security, totaling $540,402.82 plus interest.

This case highlights the lack of regulation for liquidators in New Zealand: a liquidator does not need to be a 'fit and proper person' and requires no training, qualification, registration or licensing. 

See Court decision here.