Allied Farmers Investments Ltd v Elgin Investments Ltd (in rec) HC Auckland CIV 2010-404-2247

[2010] NZHC 1805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002247

IN THE MATTER OF     the Companies Act 1993

BETWEEN  ALLIED FARMERS INVESTMENTS LTD

Plaintiff

ANDELGIN INVESTMENTS LTD (IN RECEIVERSHIP)

Defendant

Hearing:         23 August 2010

Appearances: N Gedye for Plaintiff

No appearance for Defendant
J Ridling for Commissioner of Inland Revenue

Judgment:      23 August 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

Minter Ellison RuddWatts, PO Box 3798, Shortland Street, Auckland

Cousins & Associates, PO Box 22115, Christchurch

N Gedye, PO Box 2097, Shortland Street, Auckland

ALLIED FARMERS INVESTMENTS LTD V ELGIN INVESTMENTS LTD (IN RECEIVERSHIP) HC AK CIV-2010-404-002247  23 August 2010

[1]      This  is  an  application  by  Allied  Farmers  Investments  Ltd  for  Elgin Investments Ltd (In Receivership) to be put into liquidation.   Elgin Investments Ltd (In Receivership) is a David Henderson company.  That is the Christchurch David Henderson, not the Auckland David Henderson.   Most of the Christchurch David Henderson litigation has been conducted in the High Courts in the South Island. This case is in the Auckland High Court because Elgin Investments Ltd has been placed in receivership and the registered office is now at the offices of the receivers, who are in Auckland.

[2]      The proceeding did not get off to a happy start because the original statement of claim was inadequately pleaded.   The statement of claim did not contain any reference to the plaintiff and there is no pleading that the plaintiff is a creditor of Elgin Investments Ltd.

[3]      Only certain classes of people are entitled to apply to the Court for an order that a company be put into liquidation.   They are identified in s 241(2)(c) of the Companies Act 1993.  They include a creditor, but there must be some pleading that the plaintiff is a creditor and that person ought to establish what the amount of the debt is they are saying is owed to them.  Those are completely lacking.

[4]      They also got off to a bad start with the service of a statutory demand. A statutory demand was served at an office in Christchurch, whereas, as I have indicated, the registered office of the company is in fact in Auckland.  That statutory demand cannot be relied on to prove the indebtedness of the company.

[5]      As it is, there is evidence that the company is indebted to the plaintiff.  That appears from the receiver’s report.  It also appears from orders for costs that have been  made  and  in  addition  a  summary judgment  was  given  in  the  High  Court Christchurch on 20 July 2010 in favour of the plaintiff against Elgin Investments Ltd.

[6]      It appears from the reports of the receivers, in particular the report dated

16 February 2010, that the company is insolvent and that there is no likelihood of any payment to unsecured or preferential creditors.   Mr Gedye says that Allied

Farmers Investments Ltd is itself unsecured, even though it has a second mortgage over the property.   The property in question is the Sydenham Central Shopping Centre  in  Colombo  Street,  Christchurch.  There  is  also  evidence  from  another creditor, Melray Electrical Ltd, which has an unsatisfied judgment.

[7]      Some of the deficiencies in the plaintiff’s pleading were remedied on 17

August 2010 when Lang J allowed the plaintiff to amend its statement of claim. With that statement of claim the case is now in order.   Orders can be made for the company to be put into liquidation.  The plaintiff has not provided a certificate as to the debt not being paid.  The order made now is made on Mr Gedye’s undertaking that his instructing solicitors will provide such a certificate as soon as possible.

[8]      There is an order that Elgin Investments Ltd (In Receivership) is put into liquidation.  The time of the order is 10:12 am.  The Official Assignee is appointed liquidator.  There is an order for costs in favour of the plaintiff in the sum of $1,880, plus disbursements fixed by the Registrar.   The Commissioner of Inland Revenue appears as a supporting creditor.  He is entitled to costs in the sum of $1,120, plus

disbursements of $90.

R M Bell

Associate Judge