Millions of dollars are at stake as Mainzeal litigants head back to court on Wednesday, May 8, for a decision on costs and interest payments.
Creditors of the failed construction company were owed $110 million when it collapsed in early 2013, and High Court judge Francis Cooke ruled in February that four directors, including former Prime Minister and Mainzeal chair Jenny Shipley, were liable for a total of $36 million.
However, the judgment didn’t include any decision on costs and interest payments – hence the upcoming hearing.
Cooke will be asked to decide how much the directors should pay in costs and will rule on whether any interest due to creditors is on top of, or included in, the $36 million award.
Liquidators BDO argue interest should be added to the existing compensation, given creditors have waited since 2013 for money they are owed.
Whichever Justice Cooke decides, the amounts are in the millions.
Costs could be in the order of $2 million-$3 million, if an award of costs of $2.42 million in the kiwifruit growers case against MPI earlier this year can be used as a guide.
And if the judge adds interest on the judgment sum that would mean the amount payable by the directors would likely be significantly higher. If, for example, the judge was to use the 5 percent interest rate set out in the 2011 Judicature (Prescribed Rate of Interest) Order, that could add approximately $10.8 million to the $36 million liability.
That means interest and costs could potentially lift the compensation payment to $49 million.
No one was available at Mainzeal liquidator BDO to comment, and Jack Hodder, the QC for Shipley and fellow ex-directors Clive Tilby and Peter Gomm, did not want to comment on the issues at this stage.
Stay of execution
A bystander might expect the Mainzeal court process will be on hold until the appeal later this year, once the decision on costs and interest rates is made, but that is not assured.
The next stage, if the case follows a common legal process, would see the liquidators ask the court for the money the creditors are owed. Then the Mainzeal directors could apply for what is known as a “stay of execution”, which means they don’t have to pay any money until after the appeal has been heard.
However, it’s not unusual for defendants wanting a stay of execution to be asked to put up the money awarded against them, to reassure the court they have the ability to pay. This often involves putting the funds into a trust account or similar.
But in this case it’s not clear who would put up the money, if this happened. The directors have liability insurance totalling $23 million with insurer QBE, but that won’t be enough to cover the $36 million – let alone a potential $49 million, should they also be hit with costs and interest payments.
Instead, the shortfall could possibly range from $13 million to $26 million.
Richard Yan, the head of Mainzeal’s Chinese parent company Richina, has the biggest potential liability under Justice Cooke’s judgment – the full $36 million. So he could be expected to pay the lion’s share. But he might be keen for his fellow directors to cough up some of the money. Which could mean a few millions for Shipley and the other directors.
Specialist insurance lawyer Andrew Hooker says in a case like this, the judge would be likely to grant a stay of execution, if asked, with a bond or security.
“The dominating principle is the plaintiff is entitled to the fruits of the judgment, but there is no precedent around who should put up the money.”
The appeals conundrum
Meanwhile, the directors – Shipley, Tilby, Gomm and Chinese multi-millionaire Yan – could be significantly out of pocket should their appeal fail and the cross appeal succeed.
In their appeals, likely to be heard together later this year, the directors argue they should not be liable for the failure of Mainzeal, and the liquidators are asking for a doubling of compensation for the creditors to $73 million.
BDO also argues the court was wrong to order compensation from 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.”
Hooker says in cases where insurance companies are involved, the insurance company has the right to control decisions, including whether to appeal or not.
However, Shipley and the other directors could potentially find themselves materially worse off if the appeal fails, whereas QBE’s liability is capped at $23 million.
Hooker says for this reason, the insurance company and the directors are likely to have made a decision to appeal together.
“The law is the insurer has conduct of the case but can’t do anything that might compromise their client in terms of risk.
“It’s a very grey area. The insurer has to act in good faith, so there’s no way an insurer can say: ‘we don’t care if we lose the appeal because we are not going to be worse off.’
“So that tends to suggest there is collaboration.”