The High Court judgment in Commissioner of Inland Revenue v Livingspace Properties Ltd (in rec and in liq) [2020] NZHC 1434 is another chapter in the continuing, bitter saga between Robert Walker, the liquidator of Livingspace and David Henderson (through his wife as proxy).

The applicants sought leave to remove Mr Walker as liquidator relying on the Court’s inherent jurisdiction. Justice Osborne referred to a line of cases beginning with Re Condon, ex parte James (1874) LR 9 Ch App 609 (CA) regarding the Court’s supervision of liquidators as an officer of the court. The Court held that it retains its inherent jurisdiction to entertain applications for the removal of a liquidator, including by persons who do not fall within the categories identified in s 284(1) of the Act.

The decision also discussed s 266 of the Companies Act 1993 which is the power of the court to order a person who has failed to comply with a requirement of the liquidator under s 261 to comply. Justice Osborne stated that an application under s 266 requires default under s 261 as a prerequisite. The liquidator cannot seek orders under s 266 in relation to records relating to other entities that were not the subject of the original s 261 request. This position appears contrary to ANZ National Bank Ltd v Sheahan [2012] NZHC 3037. In that decision, Heath J held that the Court may make orders under s 266 “without proof of failure to comply with an earlier requirement of a liquidator”.

The decision can be found here.