Debut Homes was a residential property development company. By the end of October 2012 it was in financial difficulties, with a substantial debt owed to the Inland Revenue Department (IRD). It also had four properties yet to be completed.

C discussed Debut Homes' financial position with the company's accountant. The accountant said that there would be a Goods and Services Tax (GST) deficit of at least $300,000 if the company completed the properties, as compared with an immediate liquidation.

C decided that creditors as a whole would be better off if Debut Homes completed the outstanding properties. The company proceeded to complete the work and in doing so made repayments to the company's secured creditors, whose debts were personally guaranteed by C and his trust.

No amounts were left over to pay the GST liability arising from the sales. Debut Homes was later placed into liquidation on the application of the IRD.

The High Court found that C had breached his duties. It considered that C knew that there would be a significant shortfall to the IRD but nevertheless elected to proceed with completing the properties. It said that C's decision was improper.

The Court of Appeal reversed the High Court's decision. It said there would have been a shortfall to the IRD even if the company had elected not to complete the properties. In the Court of Appeal's view the decision to complete the houses was a "perfectly sensible business decision" that was likely to improve the return to creditors rather than cause them loss.

The Supreme Court reversed the Court of Appeal's decision and reinstated the High Court's decision. In doing so, it addressed a number of key issues relating to directors' duties.

An important consideration for the Supreme Court was that, by November 2012, it was clear that there would be a shortfall to creditors under any realistic scenario. Further, it was not enough that the overall shortfall would be reduced by ongoing trading. The Supreme Court ruled that, if there is a shortfall, some form of insolvency or restructuring mechanism is required.

That could be a formal insolvency process, such as a liquidation, receivership, compromise, scheme of arrangement or voluntary administration. It could also be less formal, such as an informal compromise with creditors, provided that this is done in a way that is consistent with the directors' duties and involves all classes of creditors.

The touchstone in each case is the involvement of all classes of affected creditors and a corresponding loss of absolute control by the directors. Directors in these circumstances who continue to operate without reference to creditors are at risk of breaching their duties.

Under the Companies Act 1993 (CA 1993), directors must not engage in reckless trading. The Supreme Court ruled that C had breached that duty by continuing to trade.

The Supreme Court emphasised that, by November 2012, C knew that completing the properties would lead to a GST shortfall of at least $300,000. That loss was certain and it was serious.

The Supreme Court ruled that, if continued trading would result in a shortfall to creditors without engaging a formal or informal insolvency mechanism, there was a breach of the directors' duty not to engage in reckless trading. Importantly, it is not an answer to a claim for breach of duty that some creditors were better off as a result or that the overall deficit to creditors was projected to be reduced.

Directors also owe an obligation under section 136 of the CA 1993 not to agree to the company incurring obligations without a reasonable belief that the company can perform them.

The Supreme Court rejected a submission by C that the duty only applies to contractual obligations incurred with the agreement of the director, rather than tax debts. It said that the duty applied in this case because C had allowed Debut Homes to enter into the sale and purchase agreements knowing that this would result in Debut Homes incurring a GST liability. As C knew the company could not meet the GST liability, the duty had been breached.

The Supreme Court said that it was not legitimate to enter into a course of action to ensure some creditors have a higher return where this can only be achieved by incurring new liabilities to other creditors which will not be paid.

There is some debate in the case law about the nature of a director's duty to act in good faith in the best interests of the company (under section 131 of the CA 1993). The Supreme Court ruled that the duty is subjective, requiring the director to act in what they believe to be in the best interests of the company. It also said that the director's actions should not be judged solely in hindsight. However, the Supreme Court considered that a director could not subjectively believe that they are acting in the best interests of the company in an insolvency scenario if they have failed to consider the interests of all creditors, including prospective creditors. Directors are particularly at risk of breaching this duty if they have a conflict of interest, for example if they are also a creditor of the company or guarantor of some of the company's debt and consequently have an incentive to favour certain creditors over others.

As a result, the Supreme Court found that C had breached the duty.

The Supreme Court also addressed the appropriate remedies for a breach of directors' duties (an issue of particular interest pending the decision of the Court of Appeal in the Mainzeal litigation, see Mainzeal Property & Construction Ltd (in liq) v Yan [2019] NZHC 255).

The Supreme Court held that, although duties are owed to the company rather than to creditors, the consequences for directors will not necessarily be measured in terms of a company's financial loss. If directors have breached a duty of loyalty, or if they breach duties by incurring obligations without a reasonable belief that they can be met, then other remedies are possible. These include orders that directors restore property they have received from the company and pay compensation measured by reference to the debts a company has incurred (or both).

The Supreme Court also held that, although the remedy was primarily compensatory, the courts are also entitled to take into account the need to deter directors from breaching their duties in assessing the appropriate remedy.

The Supreme Court restored the orders made in the High Court under which C was required to pay $280,000 (under section 301(1)(b)(ii) of the CA 1993). It also partly set aside a general security agreement securing a further advance made to Debut Homes by C's trust after November 2012 on the ground that it would not be just and equitable for the trust to receive the funds the liquidators would recover from C for breaching his duties (under section 299(1) of the CA 1993).

The stark differences between the approaches of the Court of Appeal and the Supreme Court show the genuine challenges for directors of a near-insolvent company when making a decision as to whether to continue trading.

The key in this case was C's knowledge that Debut Homes would not be able to meet the GST liability that would arise from completing the properties. In those circumstances, the Supreme Court considered that a decision as to whether to continue to trade should have been made in the context of a formal or informal insolvency process in which all creditors had the ability to participate.

The position may be different where there is less certainty as to whether there will be an ultimate shortfall or while a director is pursuing the possibility of a formal or informal insolvency process. In these circumstances, directors are likely to be allowed a period of time to develop an understanding of the company's position and options. Indeed, there may be circumstances when continuing to trade is a reasonable risk, even if the company does ultimately fail.

In its judgment, the Supreme Court acknowledged uncertainty about the parameters of directors' choices in such situations but decided not to give any guidance on these issues in its decision.