Alexander v Registrar of Companies

[2020] NZHC 2491

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-423

[2020] NZHC 2491

UNDER

the Companies Act 1993

IN THE MATTER

of the liquidation of R A HAMPTON LIMITED (removed)

BETWEEN

PITA SHAND ALEXANDER

Applicant

AND

REGISTRAR OF COMPANIES

First Respondent

AND

THE SECRETARY TO THE TREASURY

Second Respondent

Hearing:	Determined on the papers
Counsel:	C T Jolliffe for Applicant
Judgment:	23 September 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 23 September 2020 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

23 September 2020

ALEXANDER v REGISTRAR OF COMPANIES [2020] NZHC 2491 [23 September 2020]

[1]                  Pita Shand Alexander (Mr Alexander) applies to restore R A Hampton Ltd (the company) to the Companies Office Register under s 329 of the Companies Act 1993 (the Act).

[2]                  Mr Alexander seeks to utilise the originating application procedure to have service dispensed with and that the orders be made on the papers.

Background

[3]                  The  company  was  placed  into  liquidation  on   29   October   2013   and Mr Alexander was appointed liquidator. The company had no unsecured creditors and was not involved in any litigation at the time it was struck off the Register, indeed, the final liquidator’s report records a distribution to the shareholders at the conclusion of the liquidation.

[4]                  Mr Alexander has become aware that at the time the company was removed from the Register  on 23 November  2016, the  company  was actually a creditor  of  a company called Cathcart Holdings Ltd (Cathcart), with that indebtedness secured by a mortgage held by the company. Cathcart wishes to refinance the debt owed to the company and requires the company to discharge the mortgages. The company is unable to do that unless it is restored to the Register. Mr Alexander explains the existence of this asset in the liquidation was overlooked at the time he filed his final report, due to misunderstandings and miscommunications between himself and the company solicitor.

[5]                  Mr Alexander filed his final report on 14 November 2016 with a request that the company be removed from the Register, hence the necessity for this application.

Service and use of originating application procedure

[6]                  Mr Alexander has obtained the consent of the directors and shareholders of the company. The Secretary to the Treasury and the Registrar of Companies were provided with copies of the application in draft and have both, in writing, confirmed they will abide by the Court’s decision in respect of the application.

[7]                  Again, the liquidation was in effect a solvent one, given Mr Alexander’s confirmation that there were no unsecured debts at the time of liquidation and with there being a payment to shareholders.

[8]Accordingly, I direct that service of these proceedings is dispensed with.

[9]                  It follows that it is also appropriate that leave be given for the application to be brought by way of originating application. Such is necessary as an application to restore a company to the Register is not one that can be brought as of right under the High Court Rules 2016, but, given the uncontentious nature of this application, it is appropriate that  an efficient  and cost  effective  procedure be adopted, and leave    is granted accordingly.

The substantive applications

[10]               Two substantive orders are sought. The first is the reversal of the filing of the liquidator’s  final  report   in   respect   of   the   company   –   that   report   dated   14 November 2016 and secondly, the restoration of the company to the Register.

[11]               The two steps are necessary for the reasons given in The Registrar of Companies v Body Corporate 307730.1 The effect of reversing the filing of the liquidator’s final report is that upon restoration the company will again be in liquidation with the same liquidator.

[12]               Accordingly, there is an order under s 284(1)(b) of the Act reversing the final liquidator’s report in respect of R A Hampton Ltd, dated 14 November 2016.

[13]               There is then an order under s 329(1) of the Act restoring R A Hampton Ltd to the Register of Companies with Pita Shand Alexander as the sole liquidator.

1      The Registrar of Companies v Body Corporate 307730 [2013] NZCA 659, [2014] 2 NZLR 623.

[14]               It follows, with the substantive application being dealt with on a without notice basis, that the matter is to be removed from the List on 29 October 2020.

[15]No orders as to costs are sought and so none are made.

Associate Judge Lester

Solicitors:
Anthony Harper, Christchurch