Cubo Projects Limited v S & S Import Solutions Limited

[2020] NZHC 3078

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-32

[2020] NZHC 3078

BETWEEN

CUBO PROJECTS LIMITED

Plaintiff

AND

S & S IMPORT SOLUTIONS LIMITED

Defendant

Hearing:

20 November 2020

Appearances:

S Cowan for plaintiff

T Manktelow for defendant

Judgment:

20 November 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]        In this proceeding the plaintiff seeks an order winding up the defendant on the basis that it is insolvent.

[2]        In November 2018 the parties entered into an agreement whereby the defendant engaged the plaintiff to carry out construction work. The plaintiff ultimately served payment claims under the Construction Contracts Act that went unanswered and unpaid. The plaintiff served a statutory demand pursuant to s 289 of the Companies Act in relation to the unpaid balance of those progress claims in April 2020, and it is on the basis of the defendant’s failure to comply with that statutory demand that the plaintiff moves to wind the defendant up. The defendant resists any such order. It challenges the legitimacy or otherwise of the plaintiff’s payment claims and says that it is not insolvent.

CUBO PROJECTS LIMITED v S & S IMPORT SOLUTIONS LIMITED [2020] NZHC 3078

[20 November 2020]

[3]        The proceeding came on for hearing today. I indicated some preliminary views to counsel. A discussion ensued, and the parties reached an agreed position.

[4]By consent I enter judgment in the following terms:

(a)By close of business on Monday 23 November 2020 the defendant’s solicitors will pay to the plaintiff’s solicitors the outstanding component of the claim that being the sum of $9,412.71;

(b)The plaintiff will accept that payment in full and final satisfaction of the claim and discontinue the proceeding on that basis;

(c)That leaves only costs to be resolved. The parties are agreed in relation to that that Mr Cowan for the plaintiff will file a memorandum dealing with costs by close of business on Friday 27  November 2020 and   Mr Manktelow will reply by memorandum by close of business on     4 December 2020. I will then deal with costs on the papers, and have indicated to the parties that I will certainly do so before the end of the year so that all matters can be resolved.

Associate Judge Johnston

Solicitors:

Cavell Leitch, Christchurch for plaintiff

Innes Dean Tararua Law, Palmerston North for defendant