Creditor alleges voluntary liquidation invalid
When a company voluntarily enters liquidation within a day or two of a long-deferred court hearing intended to achieve a court-ordered liquidation, creditors tend to behave a little grumpily.
The different style of liquidation creates different effective dates affecting creditors, and particularly transactions which might be overturned.
Dempsey & Wood Civil Contractors Ltd (Conal Dempsey & Tony Wood) filed its application to wind up Red Hill Homes Ltd (director now shown as Phoebe Adelaide Foley) on 11 May and counsel Eugene St John intended to proceed today.
Knowing he would be in another courtroom when the application came before Master Venning, Mr St John asked for the matter to be stood down. But counsel for the company, Brett Vautier, said the company had gone into voluntary liquidation on Monday 24 September, so the master struck out the Dempsey & Wood application.
Shortly after, Mr St John loomed up with a memo for the court outlining numerous alleged breaches, impropriety and a claim that the voluntary liquidation must be invalid.
The matter was recalled, and Master Venning overturned his order dismissing the liquidation application and granted an adjournment to 10am on Thursday 1 November to enable discussions between the parties.
Red Hill Homes, owned by Stephen Foley and his wife, Kim (also known as Kim Hawkes), was involved in a substantial residential subdivision at Papakura, where Dempsey & Wood had carried out the earthworks.
Mr Foley was declared bankrupt on 8 August and Kim Hawkes (Foley) on 15 August.
Mr St John’s memo to the court shows Arron Heath, of insolvency practitioners Meltzer Mason Heath, was appointed liquidator on Monday by resolution of Phoebe Foley (Mr Foley’s mother) and a person of indistinguishable name, both as trustees of the Karetu Trust and as shareholders of Red Hill Homes.
Mr St John said the Companies Office register did not show a change of shareholder from Mr Foley & Ms Hawkes, and he called for Mr Heath to explain how someone else was now claiming to hold the company’s shares. If the transfer was not properly carried out, the resolution to go into liquidation would have no basis, he said.
Mr Heath responded that Mr Foley & Ms Hawkes had been replaced as trustees, and the new trustees had signed the resolution.
Dempsey & Wood wanted Gerry Rea & Paul Sargison appointed liquidators.
Mr Foley, meanwhile, is working as a project manager for Waverley Developments Ltd (Gordon Hogg & Ken Kells). Companies Office records show Mr Foley was a director of Bowen Group Ltd, Buccleuch Property Group Ltd, Cliffside Holdings Ltd, Fairhaven Properties Ltd, Four Boys Ltd (in liquidation), Halcyon Group Ltd & Precision Alloys Ltd.
Mr Hogg is now shown as a director of Bowen (with Phoebe Foley), Buccleuch (still with Mr Foley) Fairhaven (with Bruce Fyfe & Phoebe Foley) & Halcyon (with Phoebe Foley), and is also a director of Unsworth Developments Ltd (with Ken Kells).
Mr Fyfe has two companies in liquidation, BA Ltd & Bruce Fyfe Homes Ltd, both with Mr Rea & Mr Sargison as liquidators.