Directors left Mainzeal creditors better off - Richard Yan's lawyer

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Mainzeal's creditors were actually better off as result of the company continuing to trade during a period where the High Court found the directors had breached their duties, according to counsel for the failed construction firm's principal, Richard Yan.

David Chisholm QC made brief submissions in the Court of Appeal yesterday where his client and three other former directors are appealing Justice Francis Cooke's 2019 decision that directors' duties were breached ahead of the construction company's 2013 collapse.

With the lawyers for Jenny Shipley, Clive Tilby and Peter Gomm already setting out much of the appeal, Chisholm pointed out that the position of creditors actually improved.

After Mainzeal collapsed more than $100 million was owing. The liquidator's case is a claim for compensation for what happened after mid-2010, when the court found directors breached their duties.

Chisholm told the court that liquidator Andrew Bethell's own evidence was that creditors' liability during the time period for the breach actually improved.

Right thing to do

While the liquidator said the company should have been liquidated in 2011, its book of work was 240 per cent larger in 2011 than it was in 2013 when it was actually liquidated. Yan argued that shows it was right to keep trading.

Yan also accused the High Court of seriously breaching natural justice, an argument also made by the other directors yesterday.

"It started floating its own unspecific theory that appeared to include a duty to avoid liquidation, after the close of the liquidator's evidence and after the evidence a cross examination of the two defendant directors," Yan's lawyer said in his written submission.

Yan's case is that there was no breach of duty.

The way liability was found was odd because the judge said directors should have threatened to resign, even while finding that the directors were diligent and conscientious, according to the submission.

The businessman said the directors were not wrong to keep trading while seeking more capital or support from parent companies.

How much?

Lawyers for Yan also said the award against him should not have been so much more than the other directors. The High Court ordered Yan to pay $18m of the $36m that the judge held the directors jointly liable for.

"If anything, Yan's circumstances in terms of personal efforts reflected a greater level of losses to his family interests through the wider RPL group, and that he had made every effort to bring funds into Mainzeal. It was unjust not to recognise those efforts in the exercise of the discretion," the submission said.

The case is continuing, with the liquidator's lawyer Mark O'Brien QC to present next. The panel of judges hearing the case includes Justices David Goddard, Stephen Kos and Forrie Miller.