Commissioner of Inland Revenue v Registrar of Companies

[2018] NZHC 7

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-000370

[2018] NZHC 7

UNDER

the Companies Act 1993 and Part 18 of the High Court Rules

IN THE MATTER OF

an application under section 329 of the Companies Act 1993 for an order restoring a company to the New Zealand companies register

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

REGISTRAR OF COMPANIES

Defendant

Hearing:	[On the Papers]
Counsel:	C D Walmsley for the Plaintiff
Judgment:	18 January 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 18 January 2018 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:    Inland Revenue Department (Legal and Technical Services), Hamilton

THE COMMISSIONER OF INLAND REVENUE v REGISTRAR OF COMPANIES [2018] NZHC 7 [18 January 2018]

[1]    The   Commissioner   of   Inland   Revenue   applies   for   an   order   that   64 Victoria Street Limited (company) be restored to the Register pursuant to s 329 of the Companies Act 1993. It also seeks a direction that the  money held  by the  Public Trust on behalf of the company be paid to the Commissioner to the credit of the company.

Background

[2]    The  company  was  removed  from  the  Companies  Office  Register  on     9 September 2016. The Registrar’s notice of removal stated that the Registrar 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.

[3]    On or about 22 December 2016, the Commissioner paid the Public Trust the sum of $76,902.34, being the amount of tax that the plaintiff believed the company had paid in excess of its liabilities. The payment was made to the Public Trust on the basis that the company’s property vested in the Crown after the company was removed from the Register.

[4]    On 28 March 2017, the company’s tax agent filed the company’s income tax return for the tax year ended 31 March 2016. The tax agent asked the Public Trust to refund the monies it held on behalf of the company to the Commissioner on the basis that this amount had previously been paid to cover the income tax of the company for the tax year ended 31 March 2016. The Public Trust advised the tax agent that the money could not be returned as requested.

[5]    On 24 April 2017, the Commissioner issued a tax return acknowledgement notice recording that the company had $77,346.35 in tax to pay (inclusive of use of money interest) for the tax year ended 31 March 2016. The Commissioner seeks the restoration of the company to the Register and a direction that the monies held by the Public Trust to put the company in the position it would have been in had it not been removed from the New Zealand Register.

[6]    The parties who may be affected, or have an interest in the proceeding have all been served. These are: the Registrar of Companies, the Public Trust, the former

directors of the company, and representatives of the interests of the shareholders in the company.

[7]    Each of these parties has given their written consent to the making of the orders sought. On that basis, counsel for the plaintiff seeks a without notice order to be made dispensing with service under r 18.7 of the High Court Rules. The Commissioner also seeks an order that the relief sought in the plaintiff’s statement of claim should be granted by consent.

Decision

[8]    I accept that there is little purpose in requiring the proceedings to be served, given that all interested parties have now received copies of the proceedings and given their written consent to the orders sought. Accordingly, I make an order dispensing with service of the proceeding.

[9]    Furthermore, I consider it is just and equitable to restore the company to the New Zealand Register. The restoration will allow the monies paid to the Public Trust after the company was removed from the Register to be refunded to the Commissioner to the credit of the company.

[10]   Finally, I am satisfied that a direction to the Public Trust to pay the monies held in its account will allow the company, the Commissioner of Inland Revenue and the Public Trust to be placed in as nearly as possible position as if the company had not been removed from the New Zealand Register.

Result

[11]I make the following orders by consent:

(a)Service of the proceedings is not required;

(b)64 Victoria Street Limited shall be restored to the Companies Office register pursuant to s 329 of the Companies Act 1993; and

(c)The  Public  Trust   shall   pay   the   monies   held   on   behalf   of   64 Victoria Street Limited to the Commissioner of Inland Revenue to the credit of 64 Victoria Street Limited.

Edwards J