Cudby & Meade Limited v Stevens

[2016] NZHC 446

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2016-485-97

[2016] NZHC 446

UNDER

section 290 of the Companies Act 1993

IN THE MATTER

of an application to set aside statutory demand

BETWEEN

CUDBY & MEADE LIMITED

Applicant

AND

DAVID STEVENS

Respondent

Hearing:	15 March 2016
Counsel:	No appearance for the Applicant D G Dewar for the Respondent
Judgment:	15 March 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]    On 13 January 2016 Mr Harry Memelink purported to file on behalf of the applicant (Cudby & Meade) an application to set aside a statutory demand which   Mr Stevens had served on Cudby & Meade on 18 December 2015.

[2]    The application should not have been accepted for filing by the registrar. As Cooke J noted in Re G J Mannix, “a company has no right to be represented in the conduct of a case in Court except by a barrister”.1 The learned Judge went on to note that “there is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in a Court except by a solicitor. This refers to the filing of documents, writs, statements of defence, notices of appeal, etc….”2

1      Re G J Mannix [1984] 1 NZLR 309 (CA) at 310.

2      At 311.

CUDBY & MEADE LIMITED v DAVID STEVENS [2016] NZHC 446 [15 March 2016]

[3]The application, then, was defective from the outset.

[4]    The  application  was  also  out  of  time.  Under  s  290(2)  of  the  Companies Act 1993 (the Act), an application to set aside a statutory demand is required to be filed and served within ten working days of the date of service of the demand. In this case, there are issues over when the application to set aside was served, but I do not need to consider them further. The application itself was not filed in Court until one day after the ten working day period allowed for filing had expired.

[5]    Under s 290(3) of the Act, the Court has no power to extend the time for the filing and service of the setting aside application.

[6]    For the foregoing reasons, the purported application to set aside the statutory demand is dismissed. There will be an order for costs in Mr Stevens’ favour on a 2B basis, plus disbursements as fixed by the registrar.

Associate Judge Smith

Solicitors:

No appearance for the applicant

Thomas Dewar Sziranyi Letts, Lower Hutt for the respondent