30 October 2017

Liquidation: Finnigan v. Ellis

Liquidators powers of examination do not extend to demands that directors of failed companies hand over details of their personal financial position, the Court of Appeal ruled in a test case.
Liquidators Peri Finnigan and Boris van Delden failed in attempts to extract personal information from lawyer Brian Ellis, previously director of failed Wenztro Co-operation Ltd formerly known as Trojan Foods (NZ) Ltd.  They are suing Wenztro directors for over $773,000 alleging failure to comply with their statutory duties when in charge of the company.  Before continuing expensive High Court litigation they wanted to see the extent of Mr Ellis’ assets.  They asked to see personal tax returns for the period 2102 to 2016, copies of his bank statements and a list of his assets and liabilities.
Australian courts have been sympathetic to liquidators demands.  English courts have not.  The question has never before been argued in New Zealand courts.  The Court of Appeal ruled New Zealand’s developing privacy rules counted against letting liquidators access private financial information.  The Privacy Act discourages information obtained for one purpose being used for another.  The New Zealand Bill of Rights Act gives citizens rights against unreasonable search.
Wenztro liquidators told the court they were concerned Mr Ellis might dissipate his assets, making himself ‘judgement-proof’.  If concerned, they can apply for a freezing order over Mr Ellis’ assets, the court said.    
Finnigan v. Ellis – Court of Appeal (30.10.17)

17.145