Commissioner of Inland Revenue v Vet Care Limited HC Wellington CIV-2011-485-1447

[2011] NZHC 1085

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1447

BETWEEN  THE COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDVET CARE LIMITED Defendant

Hearing:         12 September 2011

Appearances: D. Padmanabhan - Counsel for Plaintiff

M. Taylor - Counsel for Defendant

Judgment:      13 September 2011

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Inland Revenue Department, Solicitors, PO Box 1462, Wellington

Logan Gold Walsh, Solicitors, PO Box 562, Masterton

THE COMMISSIONER OF INLAND REVENUE V VET CARE LIMITED HC WN CIV-2011-485-1447 13

September 2011

Introduction

[1]      The plaintiff, the Commissioner of Inland Revenue, seeks directions with regard to what is effectively a filing error in these proceedings.

[2]      The present proceeding is an application for an order of liquidation brought by the plaintiff against the defendant.  The defendant is a duly incorporated company having its registered office at 20 Chapel Street, Masterton.

[3]      The plaintiff filed the present proceeding, properly intituled “IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY” on 22 July 2011 in the Wellington Registry of this Court and not the Masterton Registry.   The plaintiff’s Statement of Claim  and Notice of Proceedings  and subsequent documents  were accepted by this Court and allocated a Wellington Registry CIV number. Subsequently, a Memorandum has been filed relating to this proceeding in the Wellington Registry from a third party creditor, JSSL Properties Ltd.   In addition, the plaintiff has filed affidavits of service of both the statutory demand and these proceedings, and subsequent documents for the hearing of the application, in this Court at Wellington.  All documents filed were accepted for filing by this Court.

[4]      The defendant who is represented here has not filed a statement of defence. Instead, its counsel has filed a memorandum in this Court indicating that it does not consent to the erroneous filing of the proceeding.  The defendant then seeks that the proceeding either be dismissed or adjourned for a period of one month for the defendant to provide a detailed settlement/compromise proposal to the plaintiff and other interested creditors.

My Decision

[5]      Turning now to the directions sought by the plaintiff here, by r 5.25(1) of the High Court Rules, a proceeding must be commenced by filing a statement of claim in the proper registry of the court.  Under r 5.1(1)(a), given that the “residence” or “principal place of business” of the defendant would appear to be at Masterton, the proper registry of the court in the present case is the Masterton Registry.  Further, as the documents were filed in the Wellington Registry of this Court, the statement of

claim was also arguably non compliant with r 5.11(1)(b) in that there was an error in the “heading of the statement of claim”.

[6]      It is clear from the authorities that non-compliance with the requirements of the rule as to the proper registry for filing is not a nullity, and only an irregularity: Edgbaston Investments Ltd v BNZ [1994] 1 NZLR 634 (HC) at 640. On this, see also r 1.5 High Court Rules and the Court’s general discretion to cure non- compliance in appropriate cases.

[7]      As I see the position, there is no real prejudice suffered in the present case. Indeed, none is alleged by the defendant.  The Masterton Registry of this Court is only a filing registry, and applications filed there in any usual event are heard at the Wellington High Court.  And, under r 5.1(4) the Court may direct that all documents filed in a proceeding be transferred to the proper registry of the court.  Of course, under r 5.1(5) the Court may also direct that instead, documents are to be filed in a more convenient registry.   In Edgbaston Investments Henry J, at 639, considered that, in a situation such as the present, the Court ought to exercise some discretion and consider where the proceedings should occur, notwithstanding the fact that both r 5.1(4) and (5) require an application to be made in order for a judge to exercise his or her discretion. Nevertheless, the plaintiff, in the present case, does not appear to dispute the fact that Masterton is the proper registry. I find also in this case that in any event, the plaintiff here has effectively made a notional application for transfer of these proceedings to that Registry. As occurred in Edgbaston Investments, the proper course in the present case, in my view, is to transfer the proceeding and documents filed to the Masterton Registry as the correct registry.  An order to this effect is to follow.

[8]      As  to  the  defendant’s  further  application  for  an  adjournment,  I note  the following statement of the authors of McGechan on Procedure at HR 5.1.16 where a challenge to the registry chosen by the plaintiff for filing of an application occurred:

Where necessary, the application for transfer could seek an additional order extending time for filing a statement of defence. Any plaintiff bold enough to enter judgment by default in the face of such an application still pending could hardly expect to hold on to such default judgment.

[9]      In  the  present  case,  I  do  not  consider  that  the  defendant  has  been unnecessarily prejudiced by the filing of documents in the incorrect registry such that a lengthy adjournment is necessary.  While some extension of time for filing of any appropriate defence is required, as it was by the plaintiff’s own mistake that the current state of affairs has eventuated, no more than is reasonably necessary should be allowed.

[10]     Accordingly, for all the reasons outlined above, I now order:

a)      That the statement of claim filed in the present proceeding CIV-2011-

485-1447 and all other documents filed in this matter in the Wellington

Registry of this Court are to be transferred to the Masterton Registry;

b)     All subsequent documents in this proceeding are to be filed in that

Masterton Registry;

c)      The defendant is to have five working days from today in which to file any statement of defence to the plaintiff’s application and supporting material it may wish to file.

d)The adjourned call of this matter at 10.00 am on 10 October 2011 in the Wellington High Court is confirmed.   The liquidation application before the Court is to be heard then.

[11]     Costs on these matters are reserved to be dealt with on ultimate disposal of this proceeding.

‘Associate Judge D.I. Gendall’