Judgment may pit Mainzeal directors against each other

Dame Jenny Shipley and Richard Yan, Managing Director and Chief Executive Richina Pacific.

Mainzeal's former director Richard Yan could face claims from his fellow former directors should they have difficulties in meeting their liability for the company's collapse.

Justice Frances Cooke noted that in his judgment in the Mainzeal case when the High Court upheld claims of reckless trading in the years before receivership in 2013.

Dame Jenny Shipley, Clive Tilby and Peter Gomm were ordered to pay compensation capped at $6m each, with Yan found jointly liable for the full damages of $36m.

Justice Frances Cooke said Yan was in a different position because he was a significant personal shareholder of Richina Pacific, which benefited from funds extracted from Mainzeal.

While Yan acted honestly and was genuinely committed to Mainzeal, he induced the other directors to breach their duties, the judgment said.

The judge also noted that he'd be surprised if the other directors could meet their liability without insurance cover.

"To the extent that the second to fourth defendants [Gomm, Tilby and Shipley] have difficulties in meeting the liability they should have rights against Mr Yan. That becomes a matter between them."

Justice Cooke said Yan's liability reflected the extent of the loss caused to the creditors "together with his personal responsibility and culpability."

Mainzeal went into receivership and liquidation in February 2013, owing unsecured creditors about $110m.

Richina Pacific extracted more than $42m from Mainzeal through loans from various entities that did not have the ability to repay.

This money was then used by the Richina Pacific group to acquire assets in China now deemed to be extremely valuable.

Excluding the value of these loans from Mainzeal's balance sheet meant that Mainzeal was insolvent, and was continuously so from 2005 through to its failure in 2013, the Court ruled.

"The breach of directors' duties arose because they caused, agreed or allowed Mainzeal to engage in trade in a vulnerable state – being balance sheet insolvent with a poor financial trading position and depending on assurances of support in a way I have found to be unreasonable," Justice Cooke said.