Dalton v Registrar of Companies

[2025] NZHC 2651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1877

[2025] NZHC 2651

UNDER

Part 19 of the High Court Rules 2016 and ss 321(1)(d) and 323 of the Companies Act 1993

IN THE MATTER OF

an objection to the removal of two companies from the Companies Register

BETWEEN

SIMON DALTON as liquidator of

GCO Group Limited (in liquidation) and Tennyson GCO Limited (in liquidation) Applicant

AND

REGISTRAR OF COMPANIES

Respondent

Hearing:	11 September 2025
Appearances:	W M van Roosmalen for Applicant No appearance for Respondent
Judgment:	12 September 2025

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 12 September 2025 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Glaister Keegan, Auckland

DALTON v REGISTRAR OF COMPANIES [2025] NZHC 2651 [12 September 2025]

[1]                 The applicant in this proceeding is Simon Dalton, as liquidator of GCO Group Ltd (in liquidation) and Tennyson GCO Ltd (in liquidation). In the substantive proceeding, the applicant seeks orders preventing the removal of two companies from the Companies Register pursuant to s 323 of the Companies Act 1993. Those two companies are:

(a)Stoney Creek GCO Ltd; and

(b)Merivale GCO Ltd,

(together, the Subject Companies).

[2]                 Mr Andrew Bendemski was a director of both the Subject Companies. He was personally served with the application on 19 August 2025 and has not taken any steps in opposition. The Registrar of Companies was served with the application and abides the decision of the Court with no issue as to costs.

Procedural directions for originating application

[3]                 Within the originating application, Mr Dalton seeks directions under r 19.5, or leave under r 19.4, for the proceeding to be brought by way of originating application.

[4]                 Rule 19.2 of the High Court Rules 2016 specifies various applications that must be made by originating application. Rule 19.2(c) refers to certain sections of the Companies Act, but does not expressly refer to s 323.

[5]Section 323 of the Companies Act provides as follows:

323 Powers of court

(1)   A person who gives a notice objecting to the removal of a company from the New Zealand register on a ground specified in section 321(1)(d), (e), or (f) may apply to the court for an order that the company not be removed from the register on any ground set out in that subsection.

(2)   On an application for an order under subsection (1), the court may, if it is satisfied that the company should not be removed from the register on any of those grounds, make an order that the company is not to be removed from the register.

[6]                 On previous occasions the Court has granted leave for an application to prevent removal being pursued by way of originating application.1

[7]                 In this case, in circumstances where the application is not opposed, I accept that leave is appropriately granted under r 19.5. I do not consider r 19.4 apposite because it is directed towards applications about what steps should be taken by a liquidator, rather than addressing the appropriate procedure for an application concerning other companies.

Underlying purposes of the application

[8]                 In the course of his investigations into the assets of GCO Group Ltd, Mr Dalton identified funds totalling $733,625.51 were paid to, or on behalf of, Merivale GCO Ltd by GCO Group Ltd. The applicant therefore considers that GCO Group Ltd is a creditor of Merivale GCO Ltd for a significant amount.

[9]                 A land title search revealed that Merivale GCO Ltd owns a residential property at 38 Glen Oaks Drive,  Christchurch.  Merivale  GCO  Ltd  is  wholly  owned  by S5 Consulting Group Ltd, now in liquidation (S5). Mr Dalton is the liquidator of S5, and is now also the liquidator of Merivale GCO Ltd.

[10]              GCO Group Ltd is a 45 per cent shareholder of Stoney Creek Ltd. Stoney Creek GCO Ltd is the registered owner of a property at 1–3 McAndrew Lane, Wanaka. That property has a capital valuation of $18.8 million. Two mortgages are registered against its title:

(a)one to Senior Trust Retirement Village Income Generator Ltd; and

(b)one to Senior Trust Capital Ltd.

1      ICL Assets Ltd v Registrar of Companies [2025] NZHC 112; Beneficial Insurance Ltd v The Registrar of Companies [2017] NZHC 2437 and Singliworld Pte Ltd v The Registrar of Companies [2016] NZHC 628.

[11]              During his investigations into Tennyson GCO Ltd as its liquidator, Mr Dalton discovered a secured term loan agreement between it and WFT Finance Ltd in the sum of $3 million for “Roy's Bay” (TLA). Stoney Creek GCO Ltd is a guarantor of the TLA. There is a legal relationship between Tennyson GCO Ltd and Stoney Creek GCO Ltd due to the TLA. If Tennyson GCO Ltd defaults on the TLA and Stoney Creek GCO Ltd has already been removed from the Companies Register, Tennyson will have no ability to join it (as guarantor of the TLA) to any claim brought by the lender to have the debt repaid.

[12]              Based on the above facts, I am satisfied in terms of ss 321(1)(f) and 323(1)(a) that it would not be just or equitable to remove either of the two subject companies from the New Zealand Companies Register.

Result

[13]Accordingly, I make orders:

(a)granting the applicant leave to commence this proceeding by way of originating application;

(b)under s 323(1)(a) of the Companies Act 1993 that Stoney Creek GCO Ltd not be removed from the Companies Register;

(c)under s 323(1)(a) of the Companies Act 1993 that Merivale GCO Ltd (in liquidation) not be removed from the Companies Register; and

(d)that the applicant is to lodge a sealed copy of these orders with the Registrar of Companies.

O’Gorman J