Afd Limited v Advanced Guttering and Roofing Systems Limited HC Christchurch CIV 2011-409-000022

[2011] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2011-409-000022

BETWEEN  AFD LIMITED Applicant

ANDADVANCED GUTTERING AND ROOFING SYSTEMS LIMITED Respondent

Hearing:         23 June 2011

Appearances: DJC Russ for the Applicant

A D Marsh for the Respondent

Judgment:      23 June 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

D Russ, Fletcher Vautier Moore, Nelson –  [email protected]

A Marsh, Saunders Robinson Brown, Rangiora –  [email protected]

AFD LIMITED V ADVANCED GUTTERING AND ROOFING SYSTEMS LIMITED HC CHCH CIV 2011-

409-000022 23 June 2011

[1]      At the conclusion of counsel’s submissions I dismissed the application to set aside the statutory demand.   I noted that these cases are usually about arguable defences and for cross claims and set offs.  I said:

1.The Court is aware of course that it should not leave to a Company’s Court hearing the responsibility to decide matters in dispute which are better left for another forum.

2.Circumspection rather than being robust recommends itself as an approach in these cases.

3.In the Court’s final analysis it finds that the evidence of Mr Greening for the applicant amounted to little more than mere assertions.  Complaints of justification for non payment because of delays and negligence were made without sufficient detail. Mr Greening’s rationalisation of the existence of a second quotation relies entirely upon speculation.

4.        Overall I characterised Mr Greening’s evidence as vague,

contradictory, and sometimes barely credible.

5.In balance I concluded that the applicant did not satisfy the onus of establishing a fairly arguable case.

[2]      During the lunch break I asked counsel to address the issue of immediate liquidation per s 291(1)(b) of the Companies Act, should I dismiss the setting aside application.   It was my view that the evidence adequately addressed the issue of insolvency such that this Court could entertain an application for immediate liquidation.  I expressed the view that the applicant’s own evidence made it clear that it was unable to meet payment of its debts as they fell due.

[3]      On return from the lunch break, counsel for the respondent advised his client would be content with an order made pursuant to s 291(1)(a) extending time for compliance with the statutory demand.

[4]      I then made orders:

1.That the time for compliance with statutory demand would be extended to 4:00pm, 30 June 2011.  By that time the applicant was to meet payment in the full amount of the statutory demand, less the sum of money the parties agreed should, for the purposes of this proceeding, be deducted in connection

with issues which arose concerning the flashings which had originally been supplied. As counsel noted that matter could be referred by the parties to a Dispute Tribunal hearing.

2.At the request of counsel I directed that the issue of costs upon this application were to be addressed in memoranda from counsel in due course, those, to be filed within 14 days, and with replies thereto within 7 days thereafter.

[5]      At the conclusion of the hearing I informed counsel that fuller reasons for my judgment would be provided in due course.  However, I am now of the view that this should only be done if those are requested to be given.  I direct any request for same be filed with the Registry no later than 8 July 2011 and then only if there is an

indication from counsel that the applicant proposes to appeal the dismissal decision.

Associate Judge Christiansen