Commissioner of Inland Revenue v NZ Subdivision Developmentd Ltd HC Tauranga Civ-2010-470-879

[2011] NZHC 157

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-879

BETWEEN  COMMISSIONER OF INLAND REVENUE

Judgment Creditor

ANDNZ SUBDIVISION DEVELOPMENTD LTD

Judgment Debtor

Hearing:         28 February 2011 (Heard at Tauranga)

Appearances: Mr T Saunders for Commissioner

Mr N Smith for NZ Subdivision Developments Ltd

Judgment:      28 February 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Mr T Saunders – by email: [email protected]

Mr N Smith – by email: [email protected]

COMMISSIONER OF INLAND REVENUE V NZ SUBDIVISION DEVELOPMENTD LTD HC TAU CIV-

2010-470-879 28 February 2011

[1]      This matter was listed for an opposed hearing at 10 am today.  When it was called Mr Saunders appeared for the Commissioner and indicated that he wished to obtain orders.  Mr Smith appeared for the defendant.  He said that counsel had not received instructions.  He then was granted leave to withdraw.  No one else appeared to represent the company.

[2]      The position appears to be covered by rule 10.7.  The defendant has filed a statement of defence but not appeared.  In that circumstance rule 10.7 requires the plaintiff to prove the cause of action so far as the burden of proof lies on the plaintiff.

[3]      There is no doubt in my mind that the Commissioner has proved what is required to be proved.   He has filed the usual affidavit verifying the statement of claim and as well Ms Tagaloa of the Department has filed an affidavit setting out the calculation of the various amounts claimed and as part of her affidavit she has set out the assessments that were carried out over the period 2007 to 2010.  That being so the points  that  were raised  by the defendant  in  the statement  of defence about disputing the amounts claimed does not avail it because of the provisions of s 109 of the Tax Administration Act.

[4]      As well the Commissioner has filed a certificate of unpaid debt in accordance with the rules and that establishes that an amount of $515,717 is owed as at today’s date.   Finally, there is proof in the form of an affidavit of service that a statutory demand was served on the company and other evidence makes it clear that the statutory demand has not been satisfied.  The expiry of that statutory demand makes it clear that the company is to be presumed to be unable to pay its debts.  That is the ground upon which the Commissioner seeks an order for the appointment of liquidators to the company.   I accept that an order ought to be made.   I appoint Dennis Clifford Parsons and Katherine Louise Kenealy of Hamilton as liquidators. The order is made at 10.19 a.m.  The plaintiff will have costs on a 2B basis together with disbursements to be fixed by the Registrar.

J.P. Doogue

Associate Judge