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to manage the dire financial position into which the company had fallen. They could have
resolved that the company would stop trading. They could have taken steps to ensure
further debts were not incurred in circumstances where the company was not able to pay
them. The reality is they took no meaningful action at all. They cannot throw their hands
in the air and say it was not their fault. 7
On the issue of whether the High Court had erred in the assessment of culpability, the
Court of Appeal rejected the claim and held that “ the Judge had acknowledged lack of
dishonesty on the part of the Lewises, and was entitled as a balancing factor to take into
account their steadfast refusal to acknowledge fault and their lack of remorse. There is
nothing to indicate that the Judge improperly weighed those matters in the balance:
indeed, he was careful to exclude any punitive element from his assessment of the
amount payable under section 301.” 8
See also Goatlands Ltd (in liq) v Borell 14/12/06 Lang J, HC Hamilton CIV-2005-419-
1643; distinguished from Vance v Lamb 2/12/2008 ,Mackenzie J HC Wellington CIV-
2007-485-342; Jordan v O’ Sullivan 13/5/08 Clifford J, HC Wellington- CIV 2004-485-
2611; Krtolica v Westpac Banking Corporation [2008] NZCLR 24
7 Lewis v Mason (2009) 10 NZCLC 264,545 at [82]
8 Lewis v Mason (2009) 10 NZCLC 264,545 at [84]-[98].
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