Creditors
of an insolvent company resisting liquidators’ demands to repay money received
in the two years prior to liquidation need to do more than prove they acted in
good faith; they must have provided new value at the time payment was made by
the insolvent company. This Court of
Appeal ruling will assist creditors supplying further goods or services on
credit in return for reduction of an existing debt, but it will not assist those
creditors unfortunate enough to have an existing debt simply paid at a time
when the company was insolvent in its final two years.
The rule is intended
to encourage suppliers to keep working with an insolvent company trying to
trade its way out of financial difficulty.
The supplier gets to keep the money paid, but runs the risk that the new
debt created may turn out to be a bad debt if the debtor company is later wound
up insolvent.
The Court of Appeal
was asked to rule on a joint appeal involving two separate company
liquidations: liquidators of Contract Engineering Ltd were chasing a creditor
paid about $57,800 for concrete and steel foundations constructed on a Wairakei
pipeline project; liquidators of the same company wanted $105,400 from a
different creditor paid for the manufacture and installation of a silencer on
the same project; and liquidators of Window Holdings Ltd sought to recover
payments totalling $13,000 made to a creditor for contouring and stabilising
work. In each case, the creditor was
paid within the critical two year period at a time when the debtor company was
insolvent.
Insolvency law
operates a pari passu rule: unpaid
unsecured creditors are paid cents in the dollar on a pro rata distribution out
of cash collected in by the liquidator. Over the centuries, various statutory rules
have required creditors paid 100 cents in the dollar prior to liquidation to
put their payment back into the pot and prove instead as unsecured creditors. Not surprisingly, creditors have resisted
having to repay: they give up 100 cents and get back less. Confusion over the payback rules has arisen
following a series of amendments to insolvency law over the last twenty years.
The Court of Appeal
has clarified the rules: an existing creditor can keep money paid in the two
years prior to an insolvent debtor company being wound up insolvent only to the
extent that “new value” has been provided in return for the payment made.
The Court of Appeal
said “new value” can be provided by the supplier agreeing to resume supply of
goods or services, or by agreeing to extend the date on which payment is due
for the balance of the existing unpaid debt.
Re
Contract Engineering Ltd – Court of Appeal (27.03.13)
13.009