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«Gabrielle Smith A dissertation submitted in partial fulfilment of the degree of the Bachelor of Laws (Honours) at the University of Otago October ...»

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(2)
 The liquidator's notice must— (a)
 be in writing; and (b)
 state the liquidator's postal, email, and street addresses; and (c)
 specify the transaction or charge to be set aside; and (d)
 describe the property or state the amount that the liquidator wishes to recover; and (e)
 state that the person named in the notice may object to the transaction or charge being set aside by sending to the liquidator a written notice of objection that is received by the liquidator at his or her postal, email, or street address within 20 working days after the liquidator's notice has been served on that person; and (f)
 state that the written notice of objection must contain full particulars of the reasons for objecting and must identify any documents that evidence or substantiate the reasons for objecting; and (g)
 state that the transaction or charge will be set aside as against the person named in the notice if that person does not object; and (h)
 state that if the person named in the notice does object, the liquidator may apply to the court for the transaction or charge to be set aside.

(3)
 The transaction or charge is automatically set aside as against the person on whom the liquidator has served the liquidator's notice, if that person has not objected by sending to the liquidator a written notice of objection that is received by the liquidator at his or her postal, email, or street address within 20 working days after the liquidator's notice has been served on that person.

(4)
 The notice of objection must contain full particulars of the reasons for objecting and must identify documents that evidence or substantiate the reasons for objecting.

(5)
 A transaction or charge that is not automatically set aside may still be set aside by the court on the liquidator's application.

295 Other orders If a transaction or charge is set aside under section 294, the court may make 1 or more

of the following orders:

(a)
 an order that a person pay to the company an amount equal to some or all of the

money that the company has paid under the transaction:

(b)
 an order that a person transfer to the company property that the company has

transferred under the transaction:

(c)
 an order that a person pay to the company an amount that, in the court's opinion, fairly represents some or all of the benefits that the person has received because of the

transaction:

(d)
 an order that a person transfer to the company property that, in the court's

opinion, fairly represents the application of either or both of the following:

(i)
 money that the company has paid under the transaction:

(ii)
 proceeds of property that the company has transferred under the

transaction:

(e)
 an order releasing, in whole or in part, a charge given by the company:

(f)
 an order requiring security to be given for the discharge of an order made under

this section:

(g)
 an order specifying the extent to which a person affected by the setting aside of a transaction or by an order made under this section is entitled to claim as a creditor in the liquidation.

296 Additional provisions relating to setting aside transactions and charges (1)
 The setting aside of a transaction or an order made under section 295 does not affect the title or interest of a person in property which that person has acquired— (a)
 from a person other than the company; and (b)
 for valuable consideration; and (c)
 without knowledge of the circumstances under which the property was acquired from the company.

(2)
 The setting aside of a charge or an order made under section 295 does not affect the title or interest of a person in property which that person has acquired— (a)
 as the result of the exercise of a power of sale by the grantee of the charge; and (b)
 for valuable consideration; and (c)
 without knowledge of the circumstances relating to the giving of the charge.

(3)
 A court must not order the recovery of property of a company (or its equivalent value) by a liquidator, whether under this Act, any other enactment, or in law or in equity, if the person from whom recovery is sought (A) proves that when A received the property— (a)
 A acted in good faith; and (b)
 a reasonable person in A's position would not have suspected, and A did not have reasonable grounds for suspecting, that the company was, or would become, insolvent; and (c)
 A gave value for the property or altered A's position in the reasonably held belief that the transfer of the property to A was valid and would not be set aside.

(4)
 Nothing in the Land Transfer Act 1952 restricts the operation of this section or sections 292 to 295.

Appendix Two: Schedule 7 Companies Act 1993

Schedule 7 Preferential Claims (Rules 1 & 2)

1 Priority of payments to preferential creditors (1)
 The liquidator must first pay, in the order of priority in which they are listed,— (a)
 the fees and expenses properly incurred by the liquidator in carrying out the duties and exercising the powers of the liquidator, and the remuneration of the liquidator; and (b)
 the fees and expenses properly incurred by the administrator in carrying out the duties and exercising the powers of the administrator and the remuneration of the administrator; and (c)
 the reasonable costs of a person who applied to the court for an order that the company be put into liquidation, including the reasonable costs incurred between lawyer and client in procuring the order; and (d)
 the actual out-of-pocket expenses necessarily incurred by a liquidation committee; and (e)
 to any creditor who protects, preserves the value of, or recovers assets of the company for the benefit of the company's creditors by the payment of money or the giving of an indemnity,— (i)
 the amount received by the liquidator by the realisation of those assets, up to the value of that creditor's unsecured debt; and (ii)
 the amount of the costs incurred by that creditor in protecting, preserving the value of, or recovering those assets.





(2)
 After paying the claims referred to in subclause (1), the liquidator must next pay,

to the extent that they remain unpaid, the following claims:

(a)
 subject to clause 3(1), all wages or salary of any employee, whether or not earned wholly or in part by way of commission, and whether payable for time or for piece work, in respect of services provided to the company during

the 4 months before the commencement of the liquidation:

(aa)
 subject to clause 3(1), all untransferred amounts of an employee's payroll donations by an employer or PAYE intermediary under section 24Q of the Tax Administration Act 1994 during the 4 months before the

commencement of the liquidation:

(b)
 subject to clause 3(1), any holiday pay payable to an employee on the termination of his or her employment before, or because of, the

commencement of the liquidation:

(c)
 subject to clause 3(1), any compensation for redundancy owed to an employee that accrues before, or because of, the commencement of the

liquidation:

(d)
 subject to clause 3(1), amounts deducted by the company from the wages or salary of an employee in order to satisfy obligations of the employee (including amounts payable to the Commissioner of Inland Revenue in accordance with section 163(1) of the Child Support Act 1991 and section 167(2) of the Tax Administration Act 1994 as applied by section 70 of the

Student Loan Scheme Act 2011):

(e)
 subject to clause 3(1), any reimbursement or payment provided for, or ordered by, the Employment Relations Authority, the Employment Court, or the Court of Appeal under section 123(1)(b) or section 128 of the Employment Relations Act 2000, to the extent that the reimbursement or payment does not relate to any matter set out in section 123(1)(c) of the Employment Relations Act 2000, in respect of wages or other money or remuneration lost during the 4 months before the commencement of the liquidation:

(f)
 amounts that are preferential claims under section 263(2):

(g)
 all amounts payable to the Commissioner of Inland Revenue in accordance with section 167(2) of the Tax Administration Act 1994 as applied

by section 67 of the KiwiSaver Act 2006:

(h)
 all sums that, by any other enactment, are required to be paid in accordance with the priority established by this subclause.

(3)
 After paying the claims referred to in subclause (2), the liquidator must next pay all sums, for which a buyer is a creditor in the liquidation of the company under section 11 of the Layby Sales Act 1971,— (a)
 paid by the buyer to a seller on account of the purchase price of goods; or (b)
 to which the buyer is or becomes entitled to receive from a seller under section 9 of the Layby Sales Act 1971.

(4)
 After paying the claims referred to in subclause (3), the liquidator must next pay the amount of any costs referred to in section 234(c).
 
 (5)
 After paying the claims referred to in subclause (4), the liquidator must next pay, to the extent that it remains unpaid to the Commissioner of Inland Revenue or to the Collector of Customs, as the case may require, the amount of— (a)
 tax payable by the company in the manner required by Part 3 of the Goods and Services Tax Act 1985; and (b)
 tax deductions made by the company under the PAYE rules of the Income Tax Act 2004; and (c)
 non-resident withholding tax deducted by the company under the NRWT rules of the Income Tax Act 2004; and (d)
 resident withholding tax deducted by the company under the RWT rules of the Income Tax Act 2004; and (e)
 duty payable within the meaning of section 2(1) of the Customs and Excise Act 1996.

2 Conditions to priority of payments to preferential creditors (1)
 The claims listed in each of subclauses (2), (3), (4), and (5) of clause 1— (a)
 rank equally among themselves and, subject to any maximum payment level specified in any Act or regulations, must be paid in full, unless the assets of the company are insufficient to meet them, in which case they abate in equal proportions; and (b)
 in so far as the assets of the company available for payment of those claims are insufficient to meet them,— (i)
 have priority over the claims of any person under a security interest to the extent that the security interest— (A)
 is over all or any part of the company's accounts receivable and inventory or all or any part of either of them;

and (B)
 is not a purchase money security interest that has been perfected at the time specified in section 74 of the Personal Property Securities Act 1999; and (C)
 is not a security interest that has been perfected under the Personal Property Securities Act 1999 at the commencement of the liquidation and that arises from the transfer of an account receivable for which new value is provided by the transferee for the acquisition of that account receivable (whether or not the transfer of the account receivable secures payment or performance of an obligation); and (ii)
 must be paid accordingly out of any accounts receivable or inventory subject to that security interest (or their proceeds).

(2)
 For the purposes of subclause (1)(b), the terms account receivable, inventory, new value, proceeds, purchase money security interest, and security interest have the same meanings as in the Personal Property Securities Act 1999.
 
 (3)
 To the extent that the claims to which subclause (1) applies are paid out of assets referred to in paragraph (b) of that subclause, the amount so paid is an unsecured debt due by the company to the secured party.

(4)
 Clause 9 of this schedule, as was in force immediately before the commencement of the Personal Property Securities Act 1999, continues to apply in respect of a company whose property was subject to a floating charge that, before the commencement of that Act, became a fixed or specific charge.




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