Duke v Registrar of Companies

[2014] NZHC 26

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000125 [2014] NZHC 26

UNDER  Section 329 of the Companies Act 1993

BETWEEN  HAMISH LLEWELLYN DUKE on behalf of DUKE & KIRK INVESTMENTS LIMITED

Applicant

ANDTHE REGISTRAR OF COMPANIES Respondent

Hearing:                   29 January 2014

Appearances:           J S T Nguy for Applicant

No appearance for Respondent

Judgment:                29 January 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 29 January 2014 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

DUKE v THE REGISTRAR OF COMPANIES [2014] NZHC 26 [29 January 2014]

[1]      The  applicant  is  Hamish  Llewellyn  Duke  on  behalf  of  Duke  &  Kirk Investments Ltd which was incorporated in 2007.  It was struck off the Companies Register in October 2008 because it had not filed an annual return.  It now seeks an order under s 329 of the Companies Act 1993 that it be restored to the Register.

[2]      The evidence in support of the application comes from Mr Duke, a director and  50  per  cent  shareholder.  He  has  explained  that  the  company’s  business  is property ownership and that the company owns two properties which it is the registered proprietor.  The failure to file the annual return was an oversight on Mr Duke’s part.  He did not realise that the company was required to file annual returns and had been carrying on the company’s affairs in the belief that the company was still registered.

[3]      There is some urgency to the application because the company’s status has the potential to affect the acquisition by Mr Duke of properties which he has agreed to purchase.  Settlement of those purchases is due on 7 February 2014.  Mr Duke’s bank has, however, refused to make funds available to settle the purchases while the company is struck off the Register.  It is not clear to me, and Mr Nguy was not able to assist, why the bank should take that position since it is not the company who is the proposed purchaser.  Nevertheless, I accept Mr Duke’s evidence.

[4]      Mr Nguy has provided copies of letters from the Registrar of Companies and from the Treasury confirming that neither has any objection to the application.

[5]      I am satisfied that the striking off of the company from the Register was due to an oversight by Mr Duke.  I am satisfied that there will be no adverse effect, if the company is restored, on third parties and in the absence of any objection from the

Registrar of Companies I make the order as sought.

P Courtney J