09 352 2040
021 632 066

bret@gustafson.co.nz

Securities and PPSA advice

Introduction

I have also specialised in advising and representing parties in claims involving the Personal Property Securities Act. This legislation is based on the Canadian PPSA legislation and the Uniform Commercial Code of the United States. I subscribe to the lexis databases for these jurisdictions and am very experienced in using the same. This asset and experience allows me access to many cases and articles on the area that opposing lawyers often do not have. This gives my clients a real advantage in assessing and advancing their cases.

  

I have addressed the annual INSOL conference on the PPSA with Professor Michael Gedye although as recent cases have involved me as counsel (and are often subject to appeal) I am precluded from speaking on these topics to groups such as Insol.

 

Cases involving the PPSA and security issues

 

 


StockCo v Tawhiti- Ariki Limited, (CIV2009-404-3413, 9 June 2010, Harrison J)

My Client sought and obtained interim freezing orders to prevent distribution of assets that my client had a perfected security interest in. The defendants were third parties that had entered into agreements with my client’s debtor that gave those third parties interim possession of the stock subsequently sold by the third parties. Orders were also obtained as to disclosure of details of the defendants assets and recent payments from accounts of three different financial institutions.  

 

Sovereign Yachts (NZ) Limited v Hanover Group Holdings Limited CIV-2007-404-491 Lang J successfully prevented the removal of receivers appointed to sell super yacht 

 

NZ Associated Refrigerated Food Distributors Ltd v Donley (2010) 10 NZCLC 264,626 (HC) tracing of proceeds under the PPSA into hands of third party summary judgment.

 

Service Foods Manawatu Ltd (in receivership and liquidation) v NZ Associated Refrigerated Food Distributors Ltd (2006) 9 NZCLC 263,979

Unsuccessful application for orders by receivers of Service Foods that my client, NZARFD, did not have perfected purchase money security interest in respect of collateral held by receivers at SFML's premises. Goddard J held NZARFD had perfected its security interest on Personal Property Securities Register in accordance with legislative requirements; broad description of collateral did not amount to seriously misleading defect, irregularity, omission or error in financing statement registered by NZARFD.Noted in the following publications:

The Capital Letter 29 10/3; [2006]

 NZ Law Journal 2006 129;

 NZ Law Journal 2006 137;

 NZ Law Review [2006] 337; 

14 Waikato Law Review 34;

 NZ Law Review [2007] 380

 

New Zealand Associated Refrigerated Food Distributors Ltd v Simpson (20 June 2008, High Court, Wellington Dobson J, CIV-2007-485-1563)

This was a defended hearing setting the quantum of my clients claim against the receivers for failing to properly account to NZARFD for sale proceeds of stock in my clients possession. It followed the decision of Goddard J in the High Court, upheld in the Court of Appeal that my client had priority in the goods it supplied and their proceeds of sale ahead of the Westpac. 

 

Eagle v Petterson CIV 2011-404- 7387, 16 December 2011, HeathJ

The question for determination was what amounts could a Receiver legitimately deduct from the proceeds of accounts receivable and inventory before remitting the proceeds to the preferential creditors. Acting for David Petterson, the liquidator of a group of companies known as the Hurlstone Group we were able successfully reduce the categories of costs the Receivers wished to deduct from these proceed.

 

 

Vision Securities Ltd v Capital + Merchant Finance Ltd (in Rec) [2010] NZCCLR 21 (HC) interpretation of security sharing agreement and receivers’ liability -summary judgment.

 

Gibson & Stiassny v Stockco Limited (CIV 2010- 404 - 7120 17 December 2010, White J)

This case concerned an application for directions by the Receivers of the Crafar Farm group of Companies and a dispute as to the priority claims of two secured creditors. The case ran for 2.5 weeks and involved over 16 witnesses who gave evidence as to what was a sale of livestock in the ordinary course of the crafar farm group business. The case also involved detailed submission and a decision on how to deal with a mixing of  goods that  prevented identification of the actual goods (in this case cows) subject to a secured creditor’s claim.

 

 

Capital Equipment Finance Ltd v Dominion Finance Group Ltd 3/12/02, CA36/02- Court of Appeal case concerning release of security obtained through non disclosure.

 

 

Capital Equipment Finance Ltd v Dominion Finance Group Ltd 16/4/02, Salmon J, HC Auckland CP349-SD/00 two week trial involving  release of security obtained through non disclosure.

 

Mosby v AGC Corporation(NZ) LTD (1995) ANZ ConvR 471 (HC) injunction to prevent mortgagee sale.