Architectural Aluminium Installation Limited v Aspen Projects Limited

[2012] NZHC 1504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2662 [2012] NZHC 1504

UNDER  the Companies Act 1993

IN THE MATTER OF     an application for liquidation

BETWEEN  ARCHITECTURAL ALUMINIUM INSTALLATION LIMITED Plaintiff

ANDASPEN PROJECTS LIMITED Defendant

Hearing:         28 June 2012

Counsel:         A Borchardt for Plainitff

B P Molloy for Defendant

Judgment:      28 June 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Anja Borchardt, Bankside Chambers, P O Box 1424 Auckland 1140, for Plaintiff

Email:   [email protected]

Haigh Lyon (B P Molloy) P O Box 119 Auckland 1140, for Defendant

Email:   [email protected]

Case Officer:

Email:   [email protected]

ARCHITECTURAL ALUMINIUM INSTALLATION LIMITED V ASPEN PROJECTS LIMITED HC AK CIV-

2012-404-2662 [28 June 2012]

[1]      This is the first call on a liquidation application.  Architectural Aluminium Installation Ltd says that it is a creditor of the defendant in the sum of $1,283.09, payable in respect of work and materials supplied as a sub-contractor on a fit-out contract carried out by Aspen Projects Ltd.

[2]      Aspen Projects Ltd has filed a statement of defence and its director has sworn an affidavit stating his grounds of opposition to the application.  Those grounds are that the debt is disputed.  The creditor served a statutory demand on the registered office of Aspen Projects Ltd on 5 April 2012.  There was no compliance with the statutory demand.    Architectural Aluminium Installation Ltd relies on the presumption of insolvency.

[3]      The sole issue in this case is whether there is a genuine dispute as to the plaintiff’s debt.  The amount is small.  It is marginally above the minimum amount required for a statutory demand.

[4]      I am conscious that this matter must be resolved efficiently.  If I were to give further directions to deal with this dispute, costs are going to make the case even more uneconomic than it must have been for the parties already.  I invited the parties to submit as to the merits of the dispute of the account.

[5]      Ms Borchardt, appearing for the plaintiff, has persuaded me that there is not a genuine ground for dispute.  The defendant’s director says that he was provided with a quote for $4,195.29 for the work to be carried out by the plaintiff, and he says that the plaintiff has now added on another charge comprising the $1,283.09 within the statutory demand as an extra.  He says that the defendant is only required to pay the amount  of  the  quote  and  he  is  not  required  to  pay  for  the  extra.    However, Ms Borchardt has persuaded me that there was a genuine extra requested and quoted for.

[6]      The relevant evidence is found in the affidavit of Mr Baker.  In Exhibits D

and E he sets out the quote for the work which was to be carried out on level 9 of the

building.  That quote was for $4,195.29 plus GST.  Exhibit D refers to the supply and installation of the glass door panel to level 10 in terms that indicate that it is an extra.  Exhibit F to his affidavit shows the quote for $1,192.00 plus GST for the extra for the frameless door panel.  That is charged for as an extra in Exhibit G.  There is no complaint as to the workmanship, only as to the amount of the debt.   I am satisfied that the plaintiff does have a proper claim for an extra and the defendant does not have any grounds to dispute it.

[7]      Having  cleared  away any argument  as  to  liability,  I deal  with  the  issue whether an order for liquidation should be made now.  The defendant has defended the matter on the basis that it claims to have good grounds for refusing to pay the debt.  I have held against the defendant on that point.  However, the defendant says that it is in any event solvent.  If the director of the defendant were to continue to refuse to pay the debt, notwithstanding that  it holds funds to pay the debt, the director, in disabling the defendant from paying the debt, would create a state where the company could not pay the debt.

[8]      Mr Molloy has come to court armed with a cheque to tender payment.  He has now handed that cheque to Ms Borchardt for the plaintiff.

[9]      The only matter remaining is costs.  Costs would normally follow the event, but the amount of the debt is triflingly small.  The case is category 1 for costs.

[10]     The application for liquidation is dismissed because the defendant has now paid the debt.  The plaintiff is awarded costs under category 1.

R M Bell

Associate Judge