Airtech NZ Limited v Southern Insulation Limited
[2020] NZHC 2957
•10 November 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-42
[2020] NZHC 2957
UNDER the Companies Act 1993 IN THE MATTER
of an application to set aside a statutory demand
BETWEEN
AIRTECH NZ LIMITED
Applicant
AND
SOUTHERN INSULATION LIMITED
Respondent
Hearing: (Determined on the papers) Counsel:
H C Matthews and K M Anderson for the Applicant A D G Hitchcock for the Respondent
Judgment:
10 November 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
(in respect of costs on application to set aside statutory demand)
This judgment was delivered by me on 10 November 2020 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 10 November 2020
AIRTECH NZ LIMITED v SOUTHERN INSULATION LIMITED [2020] NZHC 2957 [10 November 2020]
Introduction
[1] On 9 July 2020, Southern Insulation Ltd (the respondent), served Airtech NZ Ltd (Airtech) with two statutory demands.
[2] On 23 July 2020, counsel for Airtech emailed to the Christchurch High Court registry at 3.40 pm for filing, an application to set aside two statutory demands.
[3] At 2.41 pm on 24 July 2020, the Registrar emailed Airtech’s counsel advising that the documents had not been accepted for filing because, as the respondent’s registered office was in Invercargill, the Invercargill High Court registry was the proper registry for filing. The Registrar then advised “could you please urgently return the amended paperwork by email to [email protected] as soon as possible to assist with the processing.” At 3.24 pm that same day, Airtech’s counsel replied to [email protected] with amended documents.
[4] In a Minute I issued on 15 October 2020, I recorded Airtech had applied for costs following the respondent withdrawing the statutory demands, the subject of the application to set aside.
[5] In the Minute I sought clarification from Airtech’s counsel as to the date of filing of the application. The statutory demands were served on 9 July 2020, meaning the application to set aside had to be filed and served before 23 July 2020. The copy of the originating application on the Court file was date stamped 24 July 2020 - meaning the application was one day late.
[6] Counsel for Airtech filed a memorandum submitting the proceedings were filed and served with the High Court at Christchurch on 23 July 2020. On 24 July 2020, the Registrar, in the email referred to at [3], advised Airtech’s counsel “The documents have not been accepted for filing ….” and then reasons were set out, including that the documents were filed in the incorrect registry.
[7] It was not until 24 July 2020 that the application was filed with the Invercargill registry.
[8] Airtech’s counsel seeks to invoke r 1.5 of the High Court Rules 2016. Counsel submits:
HCR 1.5 provides that noncompliance with the requirements of HCR 5.1 does not render the filing of the proceeding a nullity, only an irregularity.
[9] Accordingly, Airtech’s counsel submits the application was filed on 23 July 2020 when it was received at the Christchurch registry, notwithstanding that the Registrar advised “the documents have not been accepted for filing …” and the application referred to the Christchurch, and not the Invercargill registry.
[10] Airtech’s counsel relies on Edgbaston Investments Ltd v Bank of New Zealand.1 I am not convinced that Edgbaston is an applicable authority. There, the Court was faced with an application to transfer a proceeding seeking an award of damages to the Wellington registry, the proceeding having been filed in the Auckland registry. As the proceeding in issue in Edgbaston was not one that was time sensitive in the way an application to set aside a statutory demand is, the case is not on point.
Were the documents filed on 23 July 2020?
[11]The definition of “filing” in r 5.1A is as follows:
5.1A Filing generally
(1)In this rule and in rule 5.1B, —
electronic address means any method by which a document communicated in electronic form may be directed to the attention of a particular user of an electronic communications or information management, retrieval, or storage system, and includes, without limitation, –
(a)email addresses; and
(b)fax numbers; and
(c)remotely accessible locations in file directories located on computer hard-drives, servers, or internet-based servers
published means having been made available at all reasonable times on an Internet website maintained by or on behalf of a Registrar.
(2)Subject to subclauses (3) to (8), any document required by these rules to be filed in the proper registry of the court by –
1 Edgbaston Investments Ltd v Bank of New Zealand [1994] 1 NZLR 634 (HC) at [12]-[13].
(a)delivering it to that registry by hand during registry hours; or
(b)sending it by mail to a postal address for that registry published by a Registrar; or
(c)sending a copy of that document in electronic form to an electronic address –
(i)to which the person filing the document has been directed by the court or a Registrar to send any documents that are to be filed electronically in a particular proceeding or interlocutory application; or
(ii)where no such direction has been made in respect of the particular proceeding or interlocutory application to which the document relates, to an electronic address published by a Registrar for the purpose of allowing the electronic filing of documents in the proper registry of the court.
…
[12] Accordingly, to be filed by email, the document must be received by the electronic communication system of the proper registry. The email address may either be that which is given at the direction of the Court or a Registrar, or published by a Registrar.
[13] Relevantly, r 5.1(1)(a) provides that the proper registry is “the registry of the court nearest to the residence or principal place of business of the defendant”.2 In the present case, the respondent company’s registered office is in Invercargill, hence the High Court registry at Invercargill being the correct registry for filling.
[14] As at 23 July 2020, no direction had been made in respect of the proceeding accordingly r 5.1A(2)(c)(ii) applied. The documents should have been directed to the published address of the Invercargill Registry. The published address of that registry is:3
2 High Court Rules 2016, r 5.1(i)(a).
3 Ministry of Justice “Find Us – Invercargill High Court”
< of New Zealand” < the documents were received by the Christchurch registry’s electronic communications system on 23 July 2020, they were not filed because they were not received by the electronic communications system of the proper registry. Accordingly, the documents were not filed on that date. As a matter of practice, the Christchurch registry generally accepts documents at its email address if, on their face, the documents record the proper registry in terms of r 5.1. The papers sent on 23 July to the email address for the Christchurch registry did not do so. On the face of the application, the papers should have been filed in the Invercargill registry given the location of the registered office of the respondent.
[16] On 24 July 2020 the Christchurch registry replied to Airtech’s solicitors alerting them to the error and in the course of doing so provided a direction to reply with amended documents to the Christchurch registry email address. This direction caused r 5.1A(2)(c)(i) to be engaged. Accordingly, when counsel replied with the corrected documents, they were accepted for filing.
[17] By 24 July 2020 when the documents were accepted for filing, Airtech was outside the statutory timeframe to file a notice to set aside the statutory demands.
Conclusion
[18] As the application was filed out of time, it was a nullity. Given the respondent took no formal steps in the proceeding, I make no order as to costs.
Associate Judge Lester
Solicitors:
White Fox & Jones, Christchurch AWS Legal, Invercargill
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