Carlton Property Holdings Limited v Registrar of Companies

[2017] NZHC 734

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000212 [2017] NZHC 734

UNDER

Part 17 of the Companies Act 1993 and

Part 19 of the High Court Rules

BETWEEN

CARLTON PROPERTY HOLDINGS LIMITED

Applicant

AND

THE REGISTRAR OF COMPANIES Respondent

Hearing:	On the papers
Appearances:	A J Steel for Applicant G Caro for Respondent
Judgment:	12 April 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 12 April 2017 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors / Counsel:

A J Steel, Barrister, Chancery Street Chambers, Auckland

A Nicholson, Burton Partners, Auckland

G Caro, Solicitor, Registrar of Companies, Auckland

CARLTON PROPERTY HOLDINGS LIMITED v THE REGISTRAR OF COMPANIES [2017] NZHC 734 [12

April 2017]

[1]      On 19 January 2017 the Registrar of Companies gave notice in the New Zealand Gazette that she intended to remove Fitness Unlimited Limited (FUL) from the Register of Companies under s 318(1)(b) of the Companies Act 1993, on the grounds  that  she  had  reasonable  grounds  to  believe  that  the  company  was  not carrying on business and there was no proper reason for it to continue in existence. The notice stated that unless, under s 321 of the Companies Act 1993, written objection  to  the  removal  of  the  company  was  delivered  to  the  Registrar  by

17 February 2017, she was required to remove the company from the Register.

[2]      The   applicant,   Carlton   Property   Holdings   Limited   (CPHL),   promptly delivered  written  objection  to  the  removal  of  FUL  from  the  Register  under s 321(1)(d) on the basis that it had an undischarged claim against the company.

[3]      CPHL is the owner of premises at 96B Carlton Gore Road, Newmarket.  In December 2007 it leased those premises to FUL, who operated a health and fitness centre from the premises under the brand “Configure Express”.

[4]      FUL fell significantly into arrears with rent and outgoings.  On 7 November

2016 the District Court entered judgment against FUL and its sole director for the sum of $90,698.76.  Fitness Unlimited Limited has vacated the premises, but as at

14 February 2017 CPHL had not yet re-entered.  FUL allegedly owes CPHL a further

$136,082.80 in respect of rent, outgoings and other amounts due under the lease.

[5]      After the District Court judgment was obtained in November 2016, CPHL

served a notice to complete financial statements on FUL.  As at 14 February 2017

FUL had not provided any of the financial information that it was required to provide by the notice and there has been no contact from FUL or its sole director.

[6]      CPHL now applies for an order under s 323 of the Companies Act 1993 for an order that FUL not be removed from the Register of Companies.   Section 323 provides:

323     Powers of court

(1)      A person who gives a notice objecting to the removal of a company from the New Zealand register on a ground specified in  section

321(1)(d), (e), or (f) may apply to the court for an order that the

company not be removed from the register on any ground set out in that subsection.

(2)       On an application for an order under subsection (1), the court may, if it is satisfied that the company should not be removed from the register on any of those grounds, make an order that the company is not to be removed from the register.

[7]      The Registrar of Companies was served with a copy of the application under s 323 of the Companies Act.  In a joint memorandum of counsel dated 20 February

2017, the Registrar of Companies through counsel consents to an order that the application may proceed by way of originating application and the making of a substantive order that FUL not be removed from the Register of Companies.

[8]      On 10 March 2017, Associate Judge Christiansen ordered that the application may proceed by way of originating application.

[9]      Having considered all the material on file including an affidavit from the Property Asset  Manager  employed  by  Wilkinson  Property  Group  Limited,  who manage the property on behalf of CPHL, sworn 14 February 2017, I am satisfied that the jurisdictional requirements for a substantive order in this case have been met. CPHL does have an undischarged claim against FUL.

[10]     Accordingly, I order that:

(a)       Fitness Unlimited Limited shall not be removed from the Register of

Companies.

(b)The sealed copy of this order shall be lodged with the Registrar of Companies and shall be served on the registered office of Fitness Unlimited Limited.

[11]     No order for costs can be made against FUL as the company is not a party to this application.

……………………………….

Woolford J