On 25 July 2013 the Court of Appeal issued its final judgment in Farrell v Fences & Kerbs Limited  NZCA 329. The final judgment related to three conjoined appeals in which an interim judgment had been delivered on 27 March 2013 (Farrell v Fences & Kerbs Limited  3 NZLR 82). The interim judgment held that to rely on the defence to setting aside a voidable transaction in section 296(3)(c) of the Companies Act 1993 "new value" was required to be given at the time the payment that is sought to be set aside was made.
The final judgment considered whether the giving of value in section 296(3)(c) could be satisfied by the release of an antecedent debt or by the creditor forbearing to sue at the time of payment. The Court of Appeal considered that neither the release of an antecedent debt nor the forbearance to sue constituted the giving of value for the purposes of section 296(3)(c). The test required new value, which is real and substantial, to be given at the time of payment. Whether the value given met that threshold was a question of fact to be determined in each case. Releasing an antecedent debt or forbearing to sue did not constitute real or substantial value.
Two of the three respondents from the conjoined appeals have sought leave to appeal to the Supreme Court.
See Court decision here.