In the High Court of New Zealand
Auckland Registry
I Te Koti Matua 0 Aotearoa
Tamaki Makaurau RoheCIV-2019-404--

Under

Part 19 of the High Court Rules and sections 239F, 239ACD,
280 and 286 of the Companies Act 1993

In the matter ofan application pursuant to sections 239F, 239ACD, 280 and
286 of the Companies Act 1993 for an order that Mitchell
Wayne Mansfield and Jason Aleksander Kardachi not bedisqualified from appointment as administrators, deedadministrators or liquidators of Tamarind Taranaki Limited

and in the matter ofTamarind Taranaki Limited, an incorporated company having
its registered office at Level 6, 54 Gill Street, New Plymouth,
4310

In the matter of an
application byMitchell Wayne Mansfield of the Cayman Islands and Jason
Aleksander Kardachi of Singapore, chartered accountants andinsolvency practitioners
ApplicantsOriginating application without notice for orders that Mitchell Wayne
Mansfield and Jason Aleksander Kardachi be permitted to act asadministrators, deed administrators or liquidators
Dated: 5 November 2019

KenintonSwng)
18 Viaduct Harbour Avenue
Private Bag 92101
Auckland 1142
Solicitor:79884132

P +6493794196
F +64 9 309 4276
DX CP22001

J A McMillan
james.mcmillan@kensingtonswan.com

Originating application without notice for orders that Mitchell Wayne
Mansfield and Jason Aleksander Kardachi be permitted to act asadministrators, deed administrators or liquidators
To:

The Registrar of the High Court at Auckland.

This document notifies you that1

The applicants, Mitchell Wayne Mansfield of the Cayman Islands and Jason
Aleksander Kardachi of Singapore, both chartered accountants and insolvency
practitioners, apply for orders that:
athis application be permitted to be made by way of an originating application;b

notwithstanding s239F(2), ss280(1)(ca) and ss280(1)(cb) of the Companies
Act 1993 (Act), Mitchell Wayne Mansfield and Jason Aleksander Kardachi ofBorrelli Walsh (Proposed Administrators) may be appointed as joint andseveral administrators of Tamarind Taranaki Limited (Tamarind);notwithstanding s239ACD(2), ss280(1)(ca) and ss280(1)(cb) of the Act, theProposed Administrators may be appointed as joint and several deedadministrators or liquidators of Tamarind, if appointed as such at awatershed meeting of creditors in the voluntary administration of Tamarind;

din the event that the Proposed Administrators are appointed asadministrators of Tamarind, then:this application be adjourned to a date convenient to the Court;ii

a copy of this application and orders of the Court be served on all
known creditors of Tamarind notified of the first meeting of creditors inTamarind's voluntary administration pursuant to s239A0(1)(a) of theAct, at the same time and in the same manner as notice under s239A0
is given by the administrators to those creditors, with a copy of thisapplication and the Court's orders also to be posted on Borrelli Walsh's
website;the administrators' notice to creditors under s239A0(1)(a) of the Act
shall include advice to creditors of the next mention date of thisapplication, and advice that, if they wish to challenge the interim orders
made, they are entitled to do so by filing and serving a notice ofopposition within 10 working days of service of the Court's orders to set

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aside the Proposed Administrators' appointment as administrators ofTamarind; andiv

the creditors of Tamarind shall have leave to apply to the Court within
10 working days of service of the Court's orders to set aside theProposed Administrators' appointment as administrators of Tamarind;and•the Proposed Administrators' solicitor-client costs and disbursements of thisapplication are to be an expense incurred by the Proposed Administrators incarrying out their duties as administrators of Tamarind.

2The grounds on which each order is sought are as follows:
Application should be made by way of originating applicationaNo objection to the orders sought is anticipated and it is appropriate thatapplications of this nature be made by way of originating application.

bThe Court has previously permitted applications under s280 of the Act to bemade by way of originating application (see Re Tubbs [2014] NZHC 385).

•It is in the interests of justice, and of the speedy and inexpensive
determination of this application, that it be made by way of an originating
application.

Sections 239F, 239ACD and 280 of the Act preclude Proposed Administrators'appointment as administrators, deed administrators or liquidators of Tamarindwithout permission of the CourtdIn an absence of an order from the Court, ss239F(2), 239ACD(2), 280(1)(ca)and 280(1)(cb) of the Act preclude the Proposed Administrators from being
appointed as administrators, deed administrators or liquidators of Tamarind.

•Section 280(1)(ca) of the Act precludes the appointment of the Proposed
Administrators because, within two years immediately before theadministration would commence, Borrelli Walsh and Jason Kardachi
provided professional services to Tamarind, in the form of investigating
accountant services.

fSection 280(1)(cb) of the Act precludes the appointment of the Proposed
Administrators because, within two years immediately before theadministration would commence, Borrelli Walsh and the Proposed

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Administrators have had a "continuing business relationship" with a party
that is a secured creditor of Tamarind. Borrelli Walsh and the Proposed
Administrators have provided and continue to provide professional services
to Orchard Capital Partners (OCP).
Proposed Administrators' independence, competence, and integrity notcompromisedgAlthough the Proposed Administrators may arguably be precluded fromacting as administrators, deed administrators or liquidators under s280,
there is no real or apparent conflict of interest.

hBorrelli Walsh's and Jason Kardachi's provision of professional services toTamarind does not give rise to a real or apparent conflict of interest because
their involvement in providing services to Tamarind has meant that they
have gained knowledge of Tamarind's business that will allow the Proposed
Administrators to carry out their duties as administrators, deedadministrators or liquidators of Tamarind more effectively and efficiently.
Borrelli Walsh's and the Proposed Administrators' continuing business
relationship with OCP does not give rise to a real or apparent conflict ofinterest because:ithe Proposed Administrators are independent insolvency practitioners;
andii

neither Borrelli Walsh nor the Proposed Administrators have provided
any services to OCP in relation to its dealings with Tamarind, its
directors, its shareholder or any Tamarind group company.

Any apparent conflicts of interest arising under s280 of the Act would notcompromise the ability of the Proposed Administrators to act professionallyand independently.
kBoth of the Proposed Administrators have extensive experience ininsolvency. Mitchell Mansfield is:
ia director of Borrelli Walsh;ii

a Chartered Accountant and member of Chartered Accountants
Australia and New Zealand;iii

7988473.1

a registered liquidator in Australia; and4

iv
I

an official liquidator in the Cayman Islands.

Jason Kardachi is:
A managing director of Borrelli Walsh;iia chartered accountant and member of Chartered Accountants
Australia and New Zealand; andiii

an approved liquidator in Singapore and associate member of theInsolvency Practitioners Association of Singapore.

Appropriate to make orders soughtmThe Proposed Administrators will consent in writing to being appointed
administrators of Tamarind, subject to this application being granted.
If orders are made, and any creditors object to the Proposed Administrators'appointment, then those creditors retain the right to challenge the Proposed
Administrators' appointment in Court.

oIt is in the interests of justice that the application be determined without
serving notice of the application on creditors because:ithere is no real conflict relevant to the Proposed Administrators'appointment as administrators of Tamarind;ii

personal service of the application on Tamarind's approximately 104
known creditors and seven employees would be time consuming andonerous, given the urgency of the application;iii

if the Proposed Administrators are appointed administrators ofTamarind, then there is no prejudice to any creditors, as they:Awill be served with a copy of this application and the Court's orders
at the same time and in the same manner as notice of the firstmeeting of creditors under s239A0 is given by the administrators
to those creditors;

Bretain the right to challenge the Proposed Administrators'
appointment as administrators of Tamarind in Court; and/or

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C

may vote to replace the Proposed Administrators at the firstcreditors' meeting of the administration of Tamarind under s239ANof the Act.

3

The application is made in reliance upon:aSections 239F, 239ACD, 280 and 286 of the Companies Act 1993;

brules 7.23, 7.46, 18.7, 19.2, 19.4, 19.5 and 19.10 of the High Court Rules
2016;
Re Huntleigh Downs Ltd HC Wellington CIV-2009-485-1498, 11 August2009; Re Rapson Holdings HC Auckland CIV-2010-404-2319, 26 April
2010; Re Tubbs [2014] NZHC 385; Re Inglis Co& Ltd HC Wellington
CIV-2009-485-1336, 16 July 2009; Re Bridgman [2016] NZHC 933; Re
Jackson [2018] NZHC 2447; Re Maginness [2019] NZHC 1237; and Re
Drikolor New Zealand Limited [2019] NZHC 2650; anddthe affidavit of Jason Aleksander Kardachi affirmed in support of thisapplication.

4The application is made without notice to any other party on the following
grounds:
athat requiring the Proposed Administrators to proceed on notice would cause
undue delay or prejudice to the Proposed Administrators; andb

the interests of justice require the application to be determined without
serving notice of the application.

5I certify that—athe grounds set out in paragraph 4 on which the application relies are madeout; and7988473.1

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b

all reasonable inquiries and all reasonable steps have been made or taken
to ensure that the application contains all relevant information, including any
opposition or defence that might be relied on by any other party, or any factsthat would support the position of any other party.

Dated: 5 Nove ber 2019

JA cMillan
Solicitor for the applicants

Address for service:

This document is filed by James Alexander McMillan, solicitor for the applicants, of thefirm Kensington Swan, Auckland. The address for service of the applicants is 18 Viaduct
Harbour Avenue, Auckland 1010. Documents for service on the applicants may be left atthat address for service or may be:

aposted to the solicitor at c/o Kensington Swan, Private Bag 92101, Auckland
1142; orleft for the solicitor at a document exchange for direction to c/o Kensington Swan,DX CP22001, Auckland; oremailed to the solicitor atjames.mcmillan@kensingtonswan.com andpatrick.qlennie©kensinqtonswan.com.

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