05 March 2018

Liquidation: East Coast Aluminium v. Perry

Trish Perry was ordered to repay $132,900 of their Opotiki company’s cash used for family expenses at a time when the aluminium business owned jointly with her husband was insolvent.  Justice Palmer pointed out that when family companies are in financial difficulty it is tempting to stall on payments to Inland Revenue, but PAYE or GST are not a company’s or its directors’ funds to use.  Having repaid many of the company’s creditors personally, the Perrys may be in for a refund.
In 2013, Inland Revenue put East Coast Aluminium Ltd into liquidation for unpaid taxes.  Mrs Perry and husband Don are joint shareholders and co-directors.  The High Court was told East Coast had traded successfully for many years, employing up to twelve staff at its peak.  But competition in the aluminium joinery market and Mr Perry’s worsening health saw company revenue fall.  The Perrys said they decided to defer payment of GST in March 2010, hoping to trade the company out of its financial difficulties.  The position did not improve.  Justice Palmer ruled the company was clearly insolvent by that date.  Company cash used to meet private expenses from then amounted to an unsecured loan from the company to the Perrys repayable on demand.  Mrs Perry was responsible for East Coast’s primary accounting records.  She recorded the drawings as ‘Perrys’.  Their accounting advisers drafting tax accounts at year’s end labelled these drawings as ‘salary’.  Justice Palmer ruled the withdrawals were not at law a salary expense for the company: There was no evidence of an employment contract; PAYE was not deducted; and there was no connection between the Perry’s work done on behalf of the company and the irregular payments received.
Mrs Perry said if liable, she was responsible for repayment of only half the value of drawings taken.  The drawings account was in both their names.  They were jointly liable, Justice Palmer ruled.  As a joint obligation, Mrs Perry was liable for the full amount if her husband could not contribute.  Mr Perry was bankrupted in 2014.  Now discharged from bankruptcy, the slate is wiped clean.  He is not liable for any pre-bankruptcy debts.
There was evidence that unpaid company debts at the date of the court hearing totalled only $52,000.  The Perrys personally paid some of their company’s outstanding debts after liquidation.  The Perrys are in line for a refund should liquidators’ costs and legal expenses not exceed $80,000.
East Coast Aluminium Ltd v. Perry – High Court (5.03.18)

18.048