Aydogan

[2020] NZHC 3238

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-109

[2020] NZHC 3238

UNDER

the Companies Act 1993

IN THE MATTER

of an application to restore Highgrove Ground Zero Limited (1883639) to the New Zealand Companies Office Register

BETWEEN

MEVLUT AYDOGAN

Applicant

Hearing:	(Determined on the Papers)
Counsel:	J CZ Loh for the Applicant
Interim Judgment:	8 December 2020

INTERIM JUDGMENT OF ASSOCIATE JUDGE LESTER

(Application to restore Respondent to the Companies Register)

This interim judgment was delivered by me on 8 December 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 8 December 2020

RE AYDOGAN [2020] NZHC 3238 [8 December 2020]

[1]                 This is an application to restore Highgrove Ground Zero Limited (the company), to the Companies Office Register.

[2]                 The  company  was  removed  from  the  Companies  Office  Register  on     6 May 2020. At that time, it was party to proceedings before the Employment Relations Authority (ERA).

[3]The company was removed from the Register as it failed to file annual returns.

[4]                 The clear inference is that the company’s directors, despite having the company actively defend the proceedings against it in the ERA through engaging counsel to participate in case management conferences and the like, made the conscious decision to allow the company to be removed from the Register.

[5]                 A company is not removed from the Register for failing to file returns without warnings from the Companies Office.

[6]                 The applicant, Mevlut Aydogan, is entitled to seek the restoration of the company pursuant to ss 329(1)(a)(ii) and 329(2)(a)(iii) of the Companies Act 1993 (the Act). Subject to what I say below, I am satisfied that the company should be restored to the Register to allow the applicant to pursue his claim before the ERA.

[7]I do note that Insolvency Law & Practice commentary says:1

In ordinary circumstances, service of the application for restoration and supporting affidavit evidence should be made to the Registrar, the holder of any registered charge, and to every director, managing officer or shareholder of the company. The Secretary of the Treasury (as agent of the Crown in whom the company’s property is vested) should also be served.

The above requirements are discussed in Re Durweston Properties Ltd.2

[8]                 This application has been brought on a without notice basis and on the material I have, I am not dissatisfied that the ordinary rules requiring service should not be followed. That said, I appreciate that the removal of the company has frustrated the

1      Rebecca Atkins (ed) Insolvency Law & Practice(online ed, Thomson Reuters) at [CA 329.04].

2      Re Durweston Properties Ltd (1992) 6 PRNZ 95 (HC).

applicant’s proceedings which were set down for an investigation meeting on 10 and 11 June 2020  –  that  date   being   set   at   a   case   management   conference   on 24 February 2020, again, at a time when the company’s directors had failed to file the annual return. The annual return traditionally being filed no later than January and more regularly in November or December in each year.

[9]                 Accordingly, it is necessary for the applicant to attend to service requirements on the Registrar and the Secretary of the Treasury, along with the directors of the company.

[10]              As I have said, on the material before me, I do not see a basis on which not to restore the company to the Register, given there is the appearance that the company’s directors allowed it to “fall off the Register” as a means of frustrating the applicant’s claim.

[11]              Given the time of year and the need for the requirements of Re Durweston Properties Ltd to be satisfied, I will deal with the application by telephone conference at 3.00pm on Monday 1 February 2021.

Associate Judge Lester

Solicitors:
Quentin Hix Legal Limited, Timaru