Alpha Cars Wholesale (2018) Limited v Al-Chalabi

[2019] NZHC 1556

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002841

[2019] NZHC 1556

IN THE MATTER

of the Companies Act 1993

BETWEEN

ALPHA CARS WHOLESALE (2018) LIMITED

Plaintiff

AND

SHAMSALASEEL AL-CHALABI

Respondent

Hearing:	3 July 2019
Appearances:	R Sami (granted leave to withdraw) for the Plaintiff A M Swan for the Respondent
Judgment:	3 July 2019
Reasons:	4 July 2019

JUDGMENT OF WOOLFORD J

Counsel:            A M Swan, Barrister, Auckland Copy to:       R Sami, Auckland

ALPHA CARS WHOLESALE (2018) LIMITED v AL-CHALABI [2019] NZHC 1556 [3 July 2019]

[1]    In this proceeding, Alpha Cars Wholesale (2018) Limited (Alpha Cars) has filed a notice of originating application to set aside a statutory demand issued pursuant to s 289 of the Companies Act 1993. The proceeding has a substantive fixture at 10.00 am on 12 July 2019.

[2]    By minute of 3 May 2019, Associate Judge Smith directed the applicant to file and serve any reply affidavits together with written submissions in support of the application by 28 June 2019. The applicant has not done so.

[3]    On 6 June 2019, counsel for the applicant, Mr Sami, sought leave to withdraw as counsel. The proceeding was adjourned to allow Mr Khan as director of the applicant an opportunity to instruct another solicitor to appear on behalf of the applicant. He has not done so. Instead, he emailed the High Court at 8.48 am on 3 July 2019, as follows:

I refer to the MEMORANDUM OF (FORMER) COUNSEL dated 2 July 2019 (“THE SAID MEMORANDUM”) for call over at 10 AM today.

I must make it very clear, with respect to all concerned that I am not a director of the Applicant Company since March 2019. The office of the Said Former Counsel was informed of that.

I have been only contact person for the Said Applicant Company and its Officers who are overseas at present.

I do trust I have clarified my position. Kind Regards

M.S..Sahu Khan

[4]    In light of the fact that Mr Khan has not instructed another solicitor to appear on behalf of the applicant, I granted Mr Sami leave to withdraw. Before doing so, however, he provided me with a copy of a printout from the New Zealand Companies Office Register, timed and dated at 9.22 am on 3 July 2019, which indicates that the sole director of Alpha Cars is Mr Muhammad Shamsud-dean Sahu Khan. The Companies Office records calls into question Mr Khan’s assertion that he has not been a director of the applicant since March 2019.

[5]    Ms Al-Chalabi had served a statutory demand on Alpha Cars on the strength of an order of the Disputes Tribunal dated 2 March 2018 that Alpha Cars was to pay her

$11,149.50 in respect of a car purchased by her from Alpha Cars, which was not safe to drive.

[6]    Alpha Cars filed the originating application to set aside the statutory demand on the basis that it had applied for a re-hearing of the Disputes Tribunal claim on the basis that it had not received the original Disputes Tribunal application. In an affidavit dated 31 May 2019, Mr Navin Dutt Sharma, who states that he was authorised by Alpha Cars to make the affidavit on its behalf, stated that on 29 March 2018, the company had received a letter from the District Court confirming that, as regards to the application for re-hearing, “You will be advised of the referee’s decision in due course”. Accordingly, Mr Sharma maintained that there was a substantial issue to be decided and that, therefore, the statutory demand should be set aside.

[7]    Mr Sharma’s affidavit was affirmed on 31 May 2019. What he omitted to advise the Court was that by decision dated over year earlier, on 17 May 2018, the Disputes Tribunal had declined the application by Alpha Cars for a re-hearing. The Disputes Tribunal had recorded that its original order of 2 March 2018 was reinstated and could be enforced immediately.

[8]    In those circumstances, I dismissed the originating application to set aside the statutory demand under r 15.2 of the High Court Rules, specifically because the applicant had failed to prosecute its proceeding to trial and judgment by failing to comply with Court directions. I am of the view that the applicant has been guilty of an inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the respondent.

[9]    The fixture for 15 July 2019 is accordingly vacated. The proceeding is at an end.

Woolford J