Tuesday 9th April 2019
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Mainzeal Property and Construction's liquidators want to double the amount of compensation the failed firm's directors, in particular chair Jenny Shipley, were ordered to pay, in cross-appealing a High Court ruling.
In late February, Justice Francis Cooke ruled that four directors of the failed construction company should pay $36 million to unsecured creditors. The Mainzeal directors had traded recklessly, Justice Cooke said, particularly by allowing the mostly loss-making company to trade for several years while technically insolvent.
The judge ordered Shipley, Tilby and Gomm were liable for up to $6 million each of the $36 million total. In the case of a fourth director, Richard Yan, who was also the founder and main shareholder of Mainzeal’s parent company, Shanghai-based Richina Pacific, Justice Cooke said he should be liable for the full $36 million. The four directors have already filed appeals.
In their cross-appeal, Mainzeal liquidators Andrew James Bethell and Brian Mayo-Smith said the court erred in applying a discount of two-thirds to the starting point for compensation of $110 million and limiting the directors' liability to $6 million each, or 5.45 percent of the total claims filed in liquidation.
They also said the court was wrong to order compensation from ex-Prime Minister Shipley at the same rate as Tilby and Gomm, "given her role as chairperson of Mainzeal, a director of other companies within the group... and her position as a director of, and her interest in, Richina Pacific Limited, Mainzeal’s holding company until 2009."
According to the cross-appeal, "her culpability was significantly greater than the culpability of Messrs Gomm and Tilby."
They want an order for the directors to be liable to the respondents for a percentage of the sum of $73.3 million, being two-thirds, as opposed to one-third of the total creditors' claims of $110 million.
Within that, they call for Shipley, Gomm and Tilby to be jointly and severally liable with Yan for no less than 20 percent of $73.3 million together with interest. It also seeks Shipley to be jointly and severally liable with Yan for an additional 30 percent of the sum of $73.3 million together with interest.
If other elements of their appeal are accepted they have suggested different calculations, all of which involved a higher amount in total and for Shipley in particular.
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