The New Zealand High Court has, in Whittman v UCI Holdings Ltd [2016] NZHC 1228, provided further guidance as to how it will treat applications for interim relief under the Insolvency (Cross-Border) Act 2006 (Act).

On 2 June 2016, the US Bankruptcy Court appointed Mr Whittman as the foreign representative of UCI Holdings Limited (a company incorporated in New Zealand, but operating exclusively through subsidiaries in the US).  Mr Whittman then applied to the New Zealand Court for orders recognising the US judgment.  Contemporaneously, Mr Whittman applied for interim orders staying execution against and preventing the disposal of UCI's assets, which was the application subject of this decision.

The Court drew an analogy between interim relief under the Act and applications for freezing orders under part 32 of the High Court rules.  In doing so, the Court stated the factors a court may consider in determining whether to grant interim relief under the Act include:

  • A good arguable case that the applicant will succeed in his or her substantive application
  • A risk that property will be disposed of
  • The balance of convenience and overall interests of justice favouring interim orders being made.

While the judge stopped short of including it in his considerations, he also indicated his confidence that the applicant in this case had assumed a duty to provide "full and accurate disclosure" to the Court.

The judge was satisfied that Mr Whittman had met the criteria and granted the interim orders sought.

See Court decision here.