No. S1813807 Vancouver Registry in the SUPREME COURT OF
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No. S1813807 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE PART XIII OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-6, AS AMENDED AND IN THE MATTER OF MASAHIKO NISHIYAMA, BANKRUPT UNDER THE LAWS OF JAPAN FIRST REPORT OF THE RECEIVER ALVAREZ & MARSAL CANADA INC. FEBRUARY 12, 2020 TABLE OF CONTENTS 1.0 INTRODUCTION ....................................................................................................................... - 1 - 2.0 PURPOSE OF REPORT .............................................................................................................. - 2 - 3.0 TERMS OF REFERENCE .......................................................................................................... - 2 - 4.0 BACKGROUND ......................................................................................................................... - 3 - 5.0 SALES PROCESS OF CONDO .................................................................................................. - 3 - 6.0 SALE PROCESS OF MERCEDES ............................................................................................. - 6 - 7.0 RESIDUAL ASSETS .................................................................................................................. - 7 - 8.0 RECEIVER’S ACTIVITIES........................................................................................................ - 7 - 9.0 RECEIVER’S INTERIM STATEMENT OF CASH RECEIPTS AND DISBURSEMENTS .... - 8 - 10.0 RECEIVER’S CONCLUSION AND RECOMMENDATIONS ................................................. - 9 - Appendix A – Marketing and Sales Proposal By Oakwyn Realty Downtown Ltd. submitted August 9, 2019 Appendix B – Niemi Laporte & Dowle Appraisals Ltd. dated July 29, 2019 Appendix C – 2020 Property Tax Assessment Appendix D – Sales Report by Oakwyn Realty Downtown Ltd. submitted January 17, 2020 Appendix E – Contract of Purchase and Sale of the Condo dated December 31, 2019 Appendix F – Personal Property Registry Search dated January 23, 2020 Appendix G – Draft Bill of Sale of the Mercedes 1.0 INTRODUCTION 1.1 On December 21, 2018, the Supreme Court of British of British Columbia (the “Court”), granted an order (the “Recognition Order”) pursuant to sections 269 and 270 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”) recognizing in British Columbia the following: a) the bankruptcy proceedings of Masahiko Nishiyama (“Nishiyama” or the “Debtor”) commenced in the Kyoto District Court in Japan on February 10, 2016 (the “Foreign Proceedings”) as the foreign main proceedings; and b) Hiroshi Morimoto, the trustee over the bankruptcy estate of Nishiyama in Japan (the “Trustee”), as the foreign representative in respect of the Foreign Proceedings. 1.2 On February 14, 2019 (the “Receivership Date”), upon application of the Trustee, Alvarez & Marsal Canada Inc. was appointed as Receiver (“A&M” or the “Receiver”) pursuant to an order (the “Receivership Order”) granted by the Court in respect of all the assets, undertakings and property legally or beneficially owned by the Debtor in Canada, including all proceeds (the “Property”) pursuant to subsection 272(1) of the BIA. These proceedings are hereinafter referred to more generally as the “Receivership Proceedings”. 1.3 On July 19, 2019, the Court granted an order, which provides for, among other things: a) the assets and property of Sun Moon Management Ltd. (“Sun Moon”) represent Property of the Debtor, including a condominium unit located at #4102 – 1028 Barclay Street, Vancouver, British Columbia (the “Condo”); and b) a Mercedes S550 vehicle, VIN WDDNG8GB0AA343089, registered to Hatsumi Nakajima (the “Mercedes”) is Property of the Debtor. 1.4 The Receivership Order authorizes the Receiver to, among other things: a) take possession and exercise control over the Property; and b) market and solicit offers in respect of the Property and sell any parts thereof including applying for any vesting order or other orders necessary to convey the Property to a purchaser or purchasers, free and clear of any liens or encumbrances. 1.5 Concurrent with this Receiver’s first report (the “First Report”), the Receiver intends to file applications seeking the following orders: a) approving the sale of the Condo and its contents (the “Condo SAVO”) pursuant to an offer submitted by Yongling Duan (the “Condo Purchaser”) and accepted by the - 1 - Receiver on December 31, 2019 (the “Accepted Condo Offer”), subject to the approval of this Honourable Court, and vesting of all of the Debtor’s and Sun Moon’s right, title and interest in the Condo and its contents to the Condo Purchaser, free and clear from any and all security interests, hypothecs, mortgages, trusts or deemed trusts, liens, executions, levies, charges or other financial or monetary claims; and b) approving the sale of the Mercedes pursuant to an offer submitted by Maynards Industries Canada Ltd. (“Maynards”) and accepted by the Receiver on January 31, 2020 (the “Accepted Mercedes Offer”). 1.6 Further information regarding the Receivership Proceedings including copies of the court materials are posted on the Receiver’s website at www.alvarezandmarsal.com/nishiyama (the “Receiver’s Website”). 1.7 All references to dollars in this First Report are in Canadian currency, unless otherwise indicated. 2.0 PURPOSE OF REPORT 2.1 The purpose of the First Report is to provide this Honourable Court with information with respect to the following: a) background information with respect to the Debtor; b) the sales process undertaken to market and solicit offers for the Condo; c) information regarding the Accepted Condo Offer; d) information regarding the Accepted Mercedes Offer; e) information regarding residual assets; f) a summary of the activities of the Receiver since commencement of the Receivership Proceedings; g) the interim statement of receipts and disbursements for the period February 14, 2019 to January 15, 2020; h) the Receiver’s application for the Mercedes SAVO; and i) the Receiver’s application for the Condo SAVO. 3.0 TERMS OF REFERENCE 3.1 In preparing this report, A&M has necessarily relied upon unaudited financial and other information provided by the Trustee, the Trustee’s agents and other third parties. Although this information has been subject to review, A&M has not conducted an audit or otherwise attempted to verify the information’s accuracy or completeness. Accordingly, A&M expresses no opinion - 2 - and does not provide any other form of assurance on the accuracy and/or completeness of any information contained in this report, or otherwise used to prepare this report. 4.0 BACKGROUND 4.1 Nishiyama is a bankrupt and citizen of Japan who carried on business both in his own name and through a number of corporations. 4.2 Over a number of years, the Resolution and Collection Corporation, formerly the Housing Loan Administration Corporation, (“RCC”) in Japan made loans to Nishiyama and a number of related parties and companies. Nishiyama and the related entities failed to repay those loans to RCC. 4.3 RCC commenced legal action against Nishiyama and was granted judgment by the Kyoto District Court on February 9, 2012 in the amount of ¥40.7 billion plus interest and costs. 4.4 RCC subsequently commenced legal action against Nishiyama for concealing and hiding assets in corporations and with family members and RCC was granted judgment by the Kyoto District Court on October 29, 2013 in the amount of ¥4.0 billion plus interest. 4.5 On February 10, 2016, RCC filed a petition for bankruptcy against Nishiyama based on his inability or failure to repay debts and the Kyoto District Court issued a Bankruptcy Commencement Order on March 15, 2016 (the “Japan Bankruptcy Proceedings”). 4.6 On June 17, 2016, the Courts in Japan found Nishiyama guilty of certain acts pursuant to the Penal Code in Japan, such as purposely concealing assets and conspiring with others to move assets out of Japan and into foreign jurisdictions, and in doing so, Nishiyama obstructed compulsory execution against these assets in Japan. As a result, Nishiyama served three years in prison in Japan and was granted parole on July 26, 2018. Nishiyama has not complied with the Bankruptcy Act in Japan and failed to cooperate with the Trustee in his bankruptcy proceedings. 4.7 Under the Japan Bankruptcy Proceedings, the Trustee obtained foreign recognition from courts of Canada, Singapore, and Hong Kong to assist in preserving, recovering and administrating assets of the bankruptcy estate located in these jurisdictions. 4.8 As at the Receivership Date, the Debtor had approximately $411.1 million of unsecured debt owing to RCC. 5.0 SALES PROCESS OF CONDO 5.1 Pursuant to section 3 of the Receivership Order, the Receiver is empowered and authorized to, among other things: - 3 - (g) to market any or all of the Property, including advertising and soliciting offers in respect of the Property or any part or parts thereof and negotiating such terms and conditions of sale as the Receiver considers appropriate; (h) to sell, convey, transfer, lease or assign the Property or any part or parts thereof and in each such case notice under Section 59(10) of the Personal Property Security Act, R.S.B.C. 1996, c. 359 shall not be required; (i) to apply for any vesting order or other orders necessary to convey the Property or any part or parts thereof to a purchaser or purchasers, free and clear of any liens or encumbrances; Marketing and Solicitation of