Financial Markets Authority v Financial Planning Limited

[2019] NZHC 1675

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-61

[2019] NZHC 1675

UNDER

Part 16 of the Companies Act 1993

IN THE MATTER OF

an application under the Companies Act 1993 for liquidation of the defendant companies

BETWEEN

THE FINANCIAL MARKETS AUTHORITY

Plaintiff

AND

FINANCIAL PLANNING LIMITED

First Defendant

AND

IMPACT ENTERPRISES LIMITED

Second Defendant

Hearing:

17 July 2019

(On the papers and by telephone conference)

Counsel:

J S Cooper QC for the Plaintiff

Judgment:

17 July 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(with Reasons to follow)

This judgment was delivered by me on 17 July 2019 at 4.55pm pursuant to rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 17 July 2019

THE FINANCIAL MARKETS AUTHORITY v FINANCIAL PLANNING LIMITED [2019] NZHC 1675 [17 July 2019]

[1]                 The plaintiff has sought on a Pickwick basis an order appointing interim liquidators to Financial Planning Ltd and Impact Enterprises Ltd.

[2]                 I held a telephone conference with Ms Cooper QC this afternoon  (Wednesday 17 July 2019) to discuss the application.

[3]                 Ms Cooper explained the steps taken to bring the application to the attention of the defendant companies, that is again on a Pickwick basis. The sole director of both companies is a Mr Kloogh. Mr Kloogh has a Dunedin solicitor acting for him in his personal capacity. The plaintiff approached that solicitor asking if she was authorised to accept service on behalf of the defendant companies in this application. No reply was received. The solicitor was put on notice by the plaintiff that the plaintiff was going to make this application and again put on notice that I had convened the telephone conference on 17 July 2019.

[4]                 Approximately 20 minutes prior to the telephone conference the solicitor advised the plaintiff that she was not in receipt of instructions for Mr Kloogh in his capacity as a director, nor was she acting for the two defendant companies.

[5]                 Copies of the papers were served at the registered office of the two defendant companies, albeit today.

[6]                 While it may be the case that Mr Kloogh in his capacity as director is not represented by the solicitor contacted and that she may not act for the defendant companies, I infer that she will have sought instructions from Mr Kloogh in relation to the approach to her by the plaintiff. Mr Kloogh has chosen not to give her instructions in relation to this issue or to instruct other counsel who could have contacted the plaintiff in that regard.

[7]                 The matter is urgent and so I now make an order placing the first and second defendants into interim liquidation.

[8]                 That is, there will be an order in terms of para 1(a) through to para 1(k) of the without notice application dated 12 July 2019.

[9]                 In addition, there is to be an order that this file not be searched without leave of the Court.

[10]The orders are timed at 4.15pm today, Wednesday 17 July 2019.

[11]I will issue a Reasons for Judgment shortly.

Associate Judge Lester

Solicitors:

Charlotte Allan, Financial Markets Authority, Auckland

Copy to counsel: J S Cooper QC, Auckland