Body Corporate Administration Ltd v Mehta (No 4)

[2013] NZHC 213

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-412 [2013] NZHC 213

IN THE MATTER OF     an application to set aside a statutory demand issued pursuant to section 289 of the Companies Act 1993

BETWEEN  ALADDINS MOTOR INN LIMITED Applicant

ANDBOWCORP HOLDINGS LIMITED Respondent

Hearing:         15 February 2013

(Heard at Palmerston North)

Counsel:         Mr N & Mrs C Waugh - Directors of the Applicant Company

D. Sheppard - Counsel for the Respondent

Judgment:      15 February 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           MacKay & Gilkison, Solicitors, PO Box 5240, Wellington

Fitzherbert Rowe, Lawyers, Private Bag 11016, Palmerston North

ALADDINS MOTOR INN LIMITED V BOWCORP HOLDINGS LIMITED HC PMN CIV-2011-454-412 [15

February 2013]

[1]      Before the Court is an application by the applicant to set-aside a statutory demand issued against it by the respondent.   On 29 November 2012 this opposed application was set down for a defended hearing today, 15 February 2013 at 10.00 am.

[2]      A Minute was issued on that date allocating the hearing date and indicating that the provisions of r 7.39 would apply to the filing of submissions for this hearing.

[3]      Yesterday,  14  February  2013  Mr  Neville  and  Mrs  Claire Waugh  filed  a memorandum in this Court requesting that the hearing of this matter might be adjourned.   This was on the basis that they indicated they had only just become aware earlier this week of the date scheduled for hearing of this application today 15

February 2013.

[4]      The previous counsel who had been acting for the applicant company Mr

Sherwood had been granted leave to withdraw in October 2012.

[5]      It is unclear where or to whom the 29 November 2012 Minute setting this application down for hearing today was provided.  This is unfortunate.

[6]      Before me today, Mr and Mrs Waugh who appeared in person, indicated that they had not received a copy of that Minute nor had any solicitor who was acting on their behalf communicated with them as to the hearing date allocated for today.

[7]      Mr  Waugh  in  fact  informed  the  Court  that  he  had  contacted  the  Court Registry office only on Monday of this week, 11 February 2013 and learned of the hearing date for today at that point.

[8]      In  the  meantime,  Mr  Waugh  advised  that  the  applicant  company  had instructed a Mr Matt Freeman of Thomas Dewar, Solicitors, Lower Hutt to act on behalf of the applicant company in a range of matters which would include the present application.

[9]      Mr Freeman, however, who had only just accepted instructions to act on behalf of the applicant, indicated he would be unavailable for the hearing of this matter today.

[10]     Hence, the applicant now seeks an adjournment of this hearing to give it time to provide proper instructions to Mr Freeman, its new counsel, and to be properly represented in the hearing of the present matter.

[11]     An additional matter occurred last Friday, 8 February 2013.   This was the filing and service by the respondent of an affidavit of Richard John Bowling.  That affidavit was served on the applicant and I understand came to the attention of Mr and Mrs Waugh on Friday last, 8 February 2013.

[12]     Before me today, Mr Waugh indicated that the applicant seeks an opportunity to respond to that affidavit, presumably by the filing of an affidavit in response.

[13]     The  application  by  the  applicant  company  for  an  adjournment  today  is opposed by the respondent.  Mr Sheppard counsel for the respondent urged the Court to have the hearing of this matter proceed today.  He contended that this matter has been fraught with difficulties so far as the respondent is concerned with numerous delays and failures in part of the applicant to properly comply with its obligations under the High Court Rules and otherwise.

[14]     Whilst there is something in these contentions advanced by Mr Sheppard today, on balance I am of the view that the Court has little option but to grant the application for an adjournment in the general interests of justice so that the applicant company has a full and proper opportunity to advance all its arguments to the Court in support of the present application.  The Court needs to have before it all relevant material and all proper and available submissions in my view before considering the application.

[15]     This is a regrettable situation and as I see it the decision I am about to give granting the adjournment provides a degree of indulgence to the applicant company.

[16]     For all the reasons outlined above therefore the application by Mr and Mrs

Waugh on behalf of their applicant company for an adjournment today succeds.

[17]     Thus, the hearing of the application to set-aside the statutory demand is adjourned.

[18]     The  Registrar  is  directed  to  liaise  with  counsel  for  the  respondent  Mr Sheppard and the new counsel appearing for the applicant Mr Freeman to set this application down for hearing (1/2 day is allowed) at the first available opportunity either in the High Court at Palmerston North or the High Court at Wellington.  It may well be that an earlier date for hearing of the application would be available in the High Court in Wellington and if so the parties are urged if this is convenient to have this matter heard in Wellington.

[19]     In the meantime a further direction is made that the applicant is to have 10 working days from today to file and serve any reply affidavit it may wish to the affidavit of Mr Bowling filed for the respondent on 8 February 2013.

[20]     Costs with respect to the aborted hearing today are reserved.

‘Associate Judge D.I. Gendall’