Voidable preference reform: a New Zealand perspective on shifting standards and goalposts

Abstract

AbstractWhile there is consensus that some form of avoiding power is required in the context of a bankruptcy or company liquidation, there is little agreement on the means to implement a voidable preference regime. The New Zealand experience of the past eight years illustrates the inherent difficulties in designing a workable voidable preference regime. The New Zealand Companies Act 1993 replaced the debtor's intention with a test premised on the overall effect of the transaction with an exception for transactions in the ordinary course of business. The ordinary course of business exception became the most litigated and controversial aspect of the 1993 reforms and recently the government has announced its intention to abandon the ordinary course safe harbour in the pending round of insolvency reform. The paper examines the origins of the 1993 reforms and offers an explanation for the failure of the effects based regime. The New Zealand regime placed too much power in the hands of the liquidator with the result that creditors bore the cost and burden of justifying why the transaction should be saved. Although Parliament enacted the effects based regime with a view to promoting better equality of treatment amongst creditors the regime failed because it achieved too much equality. Copyright © 2003 John Wiley & Sons, Ltd.