Clode v Thompson Park Holdings Ltd

[2014] NZHC 3059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-2424 [2014] NZHC 3059

BETWEEN

BRENT DOUGLAS CLODE

Plaintiff

AND

THOMPSON PARK HOLDINGS LTD First Defendant

DAVID ROBERT JANS Second Defendant

Hearing:	3 December 2014
Counsel:	B D Clode, in person, Plaintiff P T Finnigan for Defendants
Judgment:	3 December 2014

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Carson Fox Bradley Ltd, Auckland
Counsel:
P T Finnigan, Auckland
Copy to:

Mr B R Clode, Plaintiff

CLODE v THOMPSON PARK HOLDINGS LTD [2014] NZHC 3059 [3 December 2014]

[1]      This proceeding was brought by Mr Clode.   It relates to a claim that there was an incorrect statement of shareholding in the Register of Shares for Thompson Park Holdings Ltd.   Relief was sought in the form of rectification of the share register. A claim was also made against Mr Jans, who was responsible for the way in which the share register had been prepared.

[2]      Since the claim was issued, Thompson Park Holdings Ltd, has been put into liquidation.   An order to that effect was made on 14 November 2014.   Section

284(1)(c) of the Companies Act 1993 prevents proceedings being continued against a company that has been put into liquidation without the consent of the liquidator or an order of the Court.  That means that the proceeding against Thompson Park Holdings Ltd is effectively stayed.

[3]      Section  248(1)(d)  also  provides  that  no  shares  in  the  company  can  be transferred to another, unless the Court otherwise orders.1   That may be the mode of rectification that is required should the point still be relevant once the available assets have been used for payment of any creditors.  It is something that Mr Clode can liaise with the liquidator about.

[4]      The cause of action against Mr Jans seeks an order declaring that he has committed an offence against s 91 of the Companies Act 1993.  I have explained to Mr Clode that this Court exercising civil jurisdiction cannot make a declaration that a person has committed a criminal offence.  That being the case, I have suggested that  he  make  any  complaint  to  the  Registrar  of  Companies,  so  that  it  may be investigated if it has substance.

[5]      Mr Clode accepts that no useful purpose would be served by keeping this proceeding alive.  In those circumstances, the claim is dismissed, with no order as to

costs.

P R Heath J

1      See the commentary on this provision in Heath and Whale on Insolvency (LexisNexis, looseleaf)

at paras 21.8 and 21.9.