Conset Asset Company Limited v Registrar of Companies

[2020] NZHC 172

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-756

[2020] NZHC 172

BETWEEN

CONSET ASSET COMPANY LIMITED

Applicant

AND

REGISTRAR OF COMPANIES

First Respondent

KENNETH GLEN JONES

Second Respondent

INDEPENDENT PROFESSIONAL TRUSTEES (2015) LIMITED

Third Respondent

NATALIE DALE HENSON-JONES

Fourth Respondent

IAIN BRUCE SHEPHARD

Fifth Defendant

THE SECRETARY OF THE TREASURY

Sixth Respondent

Hearing:

On the papers

Appearances:

G Blanchard QC and C J Pendleton for the applicant D L Josland for the first respondent

A Davie for the second, third and fourth respondents

Judgment:

14 February 2020

JUDGMENT OF COOKE J

[1]        By originating application dated 9 December 2019 the applicant applied for orders:

CONSET ASSET COMPANY LTD v REGISTRAR OF COMPANIES [2020] NZHC 172 [14 February 2020]

(a)Restoring Aardvark Concrete Services (2000) Limited to the Register under s 329 of the Companies Act 1993.

(b)Reversing the liquidators’ final report dated 5 March 2019 and re- appointing the former liquidators under s 284(1)(b) of the Companies Act 1993.

(c)Directing that the applicant may continue the current proceeding against Aardvark Concrete Services (2000) Limited (in liquidation) in CIV-2019-485-327 under s 248(1)(c) of the Companies Act 1993.

(d)Costs.

[2]        The basis for the application was set out in an affidavit of Craig Michael McCarthy sworn 4 December 2019. In essence in proceedings before the Court under CIV-2019-485-327 the applicant is proceeding as plaintiff against Aardvark Concrete Services (2000) Limited, the second respondent and a related trust and trustees. The claim is based on certain covenants/warranties in a sale and purchase agreement with the company as vendor of a business. In a statement of defence to an amended statement of claim the second respondent pleads that he has no liability because the company has been liquidated. The applicant does not accept that but says to avoid any argument to the contrary these applications have been made.

[3]        Affidavits of service have been filed with the Court. A joint memorandum of counsel has also now been provided indicating the respondents to the present proceeding do not oppose the application being granted. By affidavit dated 3 December 2019 the liquidator, Mr Iain Shephard consented to the originating application.

[4]        On that basis I am satisfied that the orders are appropriate as set out in [1] above. The exception is the order referred to in [1](d) as it has been agreed between the parties that no orders for costs should be made.

Cooke J