Insurance battle for Mainzeal directors
The court considered, but ultimately did not take into account, the insurance cover held collectively by the
directors.
Judge Francis Cooke
The Mainzeal court decision has opened a can of worms for Mainzeal directors and their insurers as they work out who gets up to $23 million of liability insurance payouts to cover $36m of court-ordered payments.
Last week Justice Francis Cooke ruled four directors of the failed construction company, including former Prime Minister Jenny Shipley, should pay $36m to unsecured creditors.
The Mainzeal directors had traded recklessly, Justice Cooke said, particularly by allowing the company to trade for several years while technically insolvent.
The losers had been those unsecured creditors, particularly subcontractors and some employees, who ended up being owed $110m when the company collapsed in February 2013.
There’s a strong likelihood at least one side will appeal. The Mainzeal liquidators could argue that $36m is only a third of what the creditors lost and ask for a bigger compensation payment. The directors could argue either that they weren’t reckless, or that they are paying too much.
In the meantime, arguments have already begun about the insurance.
Under the directors and officers (D&O) liability insurance policy Mainzeal took out with insurance company QBE, $23m is potentially available to help the directors pay the money they owe.
But will QBE pay out? And if so, how much will they pay, and who gets what?
One problem is there appears to be no precedent about what happens in this sort of situation. It would be easy (or easier) if all four directors had been given the same punishment — you just divide up the money equally.
But that’s not the case. Justice Cooke said in the judgment summary that all the directors had breached their duties, but Shipley and two other directors, Clive Tilby and Peter Gomm, “had all acted in good faith and with honesty and had done so throughout”. In other words, they thought they were doing the right thing, even if in the end they weren’t.
The judge made Shipley, Tilby and Gomm liable for up to $6m each of the $36m total. But the case was different for a fourth director, Richard Yan, founder and main shareholder of Mainzeal’s parent company, Shanghai-based Richina Pacific.
A key reason for the Mainzeal collapse was the New Zealand construction company had lent millions of dollars to Richina and never got it back.
Although Yan also acted honestly, the judge said: “He was in a very different position [as he] benefited very significantly from the funds extracted from Mainzeal . . . he induced the other directors to breach their duties, including by making misleading representations to them.”
Justice Cooke said Yan should be liable for the full $36m. The implication being that if the other directors for some reason weren’t able to make a contribution, Yan will end up carrying the can.
So how do you divvy up the insurance money?
At the end of the court hearing in October last year, Justice Cooke asked the parties pretty much that. Let’s say that I do find the directors behaved badly but the sum I award is more than the insurance would cover, he said in essence. Who do you think might get what?
And there was some headscratching among the lawyers.
“There is scant authority on the apportionment of cover between coinsureds making simultaneous claims that exceed the limit on indemnity,” Mark O’Brien QC, lawyer for the liquidators BDO wrote in a submission to the court after the hearing finished.
Jack Hodder QC, the lawyer for Shipley, Gomm and Tilby, said much
the same in his own memorandum of counsel.
“Where co-insured defendants face differing liability sums between themselves, in relation to one Wrongful Act, the position is unclear,” he said.
However, in an uncannily familiarsounding theoretical example, Hodder imagines a $3m judgment scenario where three defendants (he calls them defendants 1, 2 and 3) are “jointly and severally” liable for $1m, while defendant 1 is “severally” liable for $2m in addition. Trouble is, there is only $1m in the insurance pot.
Hodder imagines three potential solutions to this imagined problem:
First, give one third of the $1m insurance money to the three together (approximately $111,000 each) for the “jointly and severally” part, and two thirds to defendant 1 ($666,000). That way, defendant 1 gets the lion’s share of the cover ($777,000) while stumping up another $1.56m out of their own pocket, and defendants 2 and 3 have to pay $222,000 of their own money to make up the difference of what they owe.
Second, divide the $1m insurance payout by three (approximately $333,000 each).
Third, use the $1m to pay off the $1m “joint and several” liability of defendants 1, 2 and 3, leaving defendant 1 with the additional $2m liability “without the benefit of the policy”.
In both scenarios two and three, defendants 2 and 3 end up being fully covered by the insurance payout.
Commenting on these scenarios, Hodder argues for a solution where any payment of the insurance funds is . . . simply made towards the judgment of $3m. It is not made either to the joint and several liability of defendants 1, 2 and 3, or the several liability of defendant 1.
“When the judgment is satisfied to the value of $1m by the insurance funds, the joint and several liability of defendants 2 and 3 is necessarily extinguished.”
Of course, a lawyer acting for Shipley, Gomm and Tilby is likely to argue that way.
Under the real scenario, the QBEissued D&O indemnity policy pays out a maximum of $20m to the Mainzeal directors, plus a $1m extension for each non-executive director. Total: $23m, maximum.
Under Hodder’s solutions 2 and 3, Shipley and Tilby’s part of the payment ends up being covered by insurance. That is, $5m as each one’s quarter share, plus $1m extra because they were non-executive directors. The total: $6m each, conveniently exactly the amount they owe.
Under this arrangement, Shipley and Tilby would likely be keen to pay the money and see the whole case closed. Problem gone away.
Gomm, the former Mainzeal chief executive, wouldn’t get the $1m nonexecutive payment, but would get the $5m. Yan could get $6m, but be left with a $12m shortfall. In that case, he might put pressure on his fellow directors to push more of the insurance money in his direction. Or he could decide to appeal.
The waters are muddied by an argument about whether Yan should get any of the insurance payout at all.
In his memorandum, filed in court just before Christmas, Jack Hodder said the QBE policy arguably did not cover a director who “gained personal profit or advantage from a Wrongful Act, where that Wrongful Act was intended to gain the personal profit or advantage”. In this case, the wrongful act is the reckless trading, leading to the collapse of Mainzeal.
“In that regard, as the Court was advised during the trial, the insurer has expressly reserved the indemnity position in respect of Mr Yan,” Hodder said.
In layman’s terms: Don’t assume QBE will pay out on Yan.
Although Justice Cooke was aware of the D&O insurance behind the directors and asked the lawyers about the position, in his judgment he expressly said the existence of cover didn’t make a difference.
“The court considered, but ultimately did not take into account, the insurance cover held collectively by the directors,” he said in the judgment summary. “The court made no findings on the extent and operation of this insurance cover.”
Which doesn’t help the directors, liquidators, lawyers or insurers.
Imagine plenty of behind-closeddoors meetings.