Baronian v Registrar of Companies

[2022] NZHC 964

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000109

[2022] NZHC 964

UNDER

Section 321 of the Companies Act 1993

IN THE MATTER

of an application to prevent the deregistration of a company

BETWEEN

KIM HARON BARONIAN

Applicant

AND

THE REGISTRAR, COMPANIES OFFICE, NEW ZEALAND

Respondent

Hearing:

28 April 2022 (List Court)

Counsel:

Ms Baronian, self-represented

No appearance on behalf of the Registrar of Companies

Judgment:

9 May 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 9 May 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BARONIAN v THE REGISTRAR OF COMPANIES [2022] NZHC 964 [9 May 2022]

[1]                 Ms Baronian seeks an order that Cashmere Glass Ltd not be removed from the Companies Register pursuant to s 323 of the Companies Act 1993.

[2]                 The Registrar of Companies has been served and abides the decision of the Court.

Background

[3]                 The Registrar of Companies gave notice of its intention to remove Cashmere Glass Ltd from the register. It appears that the company had failed to file its annual return.

[4]                 Prior to the Registrar initiating further action to remove the company,  on    18 March 2022 Ms Baronian notified the Registrar of her objection to the company’s removal from the register.

[5]                 On 28 March 2022, Ms Baronian commenced this proceeding and served the Registrar with it on 29 March 2022.

[6]                 On 31 March 2022, the Registrar acknowledged service of the proceeding and advised it would abide the decision of the Court. The Registrar also advised that Cashmere Glass Ltd would not be removed from the register pending a further Court ruling on Ms Baronian’s application.

[7]                 The application came before me on 28 April 2022 and, after hearing from Ms Baronian, I adjourned the application so that Ms Baronian, who is self-represented, could provide me with some more information in relation to it.

[8]                 In the minute issued following the hearing, I granted Ms Baronian leave to commence the proceeding by way of originating application under r 19.5 of the High Court Rules 2016.

Grounds of the application

[9]                 The application is made in reliance upon s 321(1)(d) of the Companies Act. That subsection allows a person to object to the removal of a company from the

register if that person is a creditor, or a shareholder, or a person who has an undischarged claim against the company.

[10]              Ms Baronian is a creditor of the company with an undischarged claim having obtained an order of the Disputes Tribunal on 11 October 2021 that Cashmere Glass Ltd pay her $11,356.08 before 11 November 2021. The debt remains unpaid.

[11]              Ms Baronian is in the process of taking enforcement action against the company to recover the debt and requires the order sought so that the steps she has or will take can be completed.

[12]              I am satisfied that Ms Baronian has made out the grounds for the substantive order sought.

[13]              I am also satisfied there would be little point in directing service of the proceeding on Cashmere Glass Ltd or any shareholder or director of that company in light of the company’s non-compliance with its statutory obligations and because the company’s sole shareholder and director, James Gregory Truman, has passed away.

[14]There shall be orders as follows:

(a)Under s 323 of the Companies Act 1993, Cashmere Glass Ltd shall not be removed from the New Zealand Register of Companies for a period of 12  months  from  today  (which  I  consider  adequate  time  for  Ms Baronian to complete any execution processes to recover her debt).

(b)I reserve leave for Ms Baronian to apply to extend the order made in

(a)  on notice to the Registrar of Companies.

(c)Ms Baronian must seal a copy of this order and serve it upon the Registrar of Companies within five working days of this decision.

[15]              Ms Baronian has not sought costs and as she is not legally represented, she is not entitled to claim costs in any event. I consider she is entitled to reimbursement

from Cashmere Glass Ltd of her filing fee on the application in the sum of $540, and I so order.

O G Paulsen Associate Judge

Copy to: Ms K H Baronian